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428 U.S. 262
96 S.Ct. 2950
49 L.Ed.2d 929
Jerry Lane JUREK, Petitioner,v.State of TEXAS.
No. 75-5394.
Argued March 30, 1976.
Decided July 2, 1976.
Stay Granted July 22, 1976. See 429 U.S. 1301, 96 S.Ct. 3235.
Rehearing Denied Oct. 4, 1976. See 429 U.S. 875, 97 S.Ct. 198.
Syllabus
Petitioner, who was convicted of murder and whose death sentence was upheld on appeal, challenges the constitutionality of the Texas procedures enacted after this Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. The new Texas Penal Code limits capital homicides to intentional and knowing murders committed in five situations. Texas also adopted a new capital-sentencing procedure, which requires the jury to answer the following three questions in a proceeding that takes place after a verdict finding a person guilty of one of the specified murder categories; (1) whether the conduct of the defendant causing the death was committed deliberately and with the reasonable expectation that the death would result; (2) whether it is probable that the defendant would commit criminal acts of violence constituting a continuing threat to society; and (3) if raised by the evidence, whether the defendant's conduct was an unreasonable response to the provocation, if any, by the deceased. If the jury finds that the State has proved beyond a reasonable doubt that the answer to each of the three questions is affirmative the death sentence is imposed; if it finds that the answer to any question is negative a sentence of life imprisonment results. The Texas Court of Criminal Appeals in this case indicated that it will interpret the "continuing threat to society" question to mean that the jury could consider various mitigating factors. Held : The judgment is affirmed. Pp. 268-277; 277; 278-279; 279.
Tex.Cr.App., 522 S.W.2d 934, affirmed.
Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS concluded that:
1. The imposition of the death penalty is not Per se cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Gregg, 428 U.S., at 168-187, 96 S.Ct., at 2922-2932. P. 268.
2. The Texas capital-sentencing procedures do not violate the Eighth and Fourteenth Amendments. Texas' action in narrowing capital offenses to five categories in essence requires the jury to find the existence of a statutory aggravating circumstance before the death penalty may be imposed, thus requiring the sentencing authority to focus on the particularized nature of the crime. And, though the Texas statute does not explicitly speak of mitigating circumstances, it has been construed to embrace the jury'consideration of such circumstances. Thus, as in the cases of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, and Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, the Texas capital-sentencing procedure guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death. The Texas law has thus eliminated the arbitrariness and caprice of the system invalidated in Furman. Petitioner's contentions to the contrary are without substance. Pp. 268-276.
(a) His assertion that arbitrariness still pervades the entire Texas criminal justice system fundamentally misinterprets Furman. Gregg, 428 U.S., at 198-199, 96 S.Ct., at 2937. P. 274.
(b) Petitioner's contention that the second statutory question is unconstitutionally vague because it requires the prediction of human behavior lacks merit. The jury's task in answering that question is one that must commonly be performed throughout the American criminal justice system, and Texas law clearly satisfies the essential requirement that the jury have all possible relevant information about the individual defendant. Pp. 274-276.
The Chief Justice concurred in the judgment. See Furman v. Georgia, Supra, 408 U.S., at 375, 92 S.Ct., at 2796 (Burger, C. J., dissenting) P. 277.
Mr. Justice WHITE, joined by THE CHIEF JUSTICE and Mr. Justice REHNQUIST, concluded that under the revised Texas law the substantive crime of murder is narrowly defined and when murder occurs in one of the five circumstances detailed in the statute, the death penalty Must be imposed if the jury makes the certain additional findings against the defendant. Petitioner's contentions that unconstitutionally arbitrary or discretionary statutory features nevertheless remain are without substance, Roberts v. Louisiana, 428 U.S. 325, 348-350, 96 S.Ct. 3001, 3013-3014, 49 L.Ed.2d 974 (White, J., dissenting); Gregg v. Georgia, 428 U.S., at 224-225, 96 S.Ct., at 2948-2949 (White, J., concurring in judgment), as is his assertion that the Eighth Amendment forbids the death penalty under any and all circumstances. Roberts v. Louisiana, 428 U.S. 325, 350-356, 96 S.Ct. 3001, 3014-3017, 49 L.Ed.2d 974 (White, J., dissenting) Pp. 278-279.
Mr. Justice BLACKMUN concurred in the judgment. See Furman v. Georgia, 408 U.S. 238, 405-414, 92 S.Ct. 2726, 2811-2816, 33 L.Ed.2d 346 (Blackmun, J., dissenting), and Id., at 375, 414, and 465, 92 S.Ct., at 2796, 2816, and 2841. P. 279.
Anthy G. Amsterdam, Stanford, Cal., for petitioners. John L. Hill, Austin, Tex., for the State of Texas.
William E. James, Los Angeles, Cal., argued for the State of California, as amicus curiae.
Sol. Gen. Robert H. Bork, Washington, D. C., argued for the United States, as amicus curiae.
Judgment of the Court, and opinion of Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS, announced by Mr. Justice STEVENS.
1
The issue in this case is whether the imposition of the sentence of death for the crime of murder under the law of Texas violates the Eighth and Fourteenth Amendments to the Constitution.
2
* The petitioner in this case, Jerry Lane Jurek, was charged by indictment with the killing of Wendy Adams
3
[Amicus Curiae Information from page 264 intentionally omitted] "by choking and strangling her with his hands, and by drowning her in water by throwing her into a river in the course of committing and attempting to commit kidnapping of and forcible rape upon the said Wendy Adams."1
4
The evidence at his trial consisted of incriminating statements made by the petitioner,2 the testimony of several people who saw the petitioner and the deceased during the day she was killed, and certain technical evidence. This evidence established that the petitioner, 22 years old at the time, had been drinking beer in the afternoon. He and two young friends later went driving together in his old pickup truck. The petitioner expressed a desire for sexual relations with some young girls they saw, but one of his companions said the girls were too young. The petitioner then dropped his two friends off at a pool hall. He was next seen talking to Wendy, who was 10 years old, at a public swimming pool where her grandmother had left her to swim. Other witnesses testified that they later observed a man resembling the petitioner driving an old pickup truck through town at a high rate of speed, with a young blond girl standing screaming in the bed of the truck. The last witness who saw them heard the girl crying "help me, help me." The witness tried to follow them, but lost them in traffic. According to the petitioner's statement, he took the girl to the river, choked her,3 and threw her unconscious body in the river. Her drowned body was found downriver two days later.
5
At the conclusion of the trial the jury returned a verdict of guilty.
6
Texas law requires that if a defendant has been convicted of a capital offense, the trial court must conduct a separate sentencing proceeding before the same jury that tried the issue of guilt. Any relevant evidence may be introduced at this proceeding, and both prosecution and defense may present argument for or against the sentence of death. The jury is then presented with two (sometimes three) questions,4 the answers to which determine whether a death sentence will be imposed.
7
During the punishment phase of the petitioner's trial, several witnesses for the State testified to the petitioner's bad reputation in the community. The petitioner's father countered with testimony that the petitioner had always been steadily employed since he had left school and that he contributed to his family's support.
8
The jury then considered the two statutory questions relevant to this case: (1) whether the evidence established beyond a reasonable doubt that the murder of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result, and (2) whether the evidence established beyond a reasonable doubt that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. The jury unanimously answered "yes" to both questions, and the judge, therefore, in accordance with the statute, sentenced the petitioner to death. The Court of Criminal Appeals of Texas affirmed the judgment. 522 S.W.2d 934 (1975).
9
We granted certiorari, 423 U.S. 1082, 96 S.Ct. 1090, 47 L.Ed.2d 93, to consider whether the imposition of the death penalty in this case violates the Eighth and Fourteenth Amendments of the United States Constitution.
II
10
The petitioner argues that the imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. We reject this argument for the reasons stated today in Gregg v. Georgia, 428 U.S. 153, 168-187, 96 S.Ct. 2909, 2922-2932, 49 L.Ed.2d 859.
III
A.
11
After this Court held Texas' system for imposing capital punishment unconstitutional in Branch v. Texas, decided with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Texas Legislature narrowed the scope of its laws relating to capital punishment. The new Texas Penal Code limits capital homicides to intentional and knowing murders committed in five situations: murder of a peace officer or fireman; murder committed in the course of kidnaping, burglary, robbery, forcible rape, or arson; murder committed for remuneration; murder committed while escaping or attempting to escape from a penal institution; and murder committed by a prison inmate when the victim is a prison employee. See Tex.Penal Code § 19.03 (1974).
12
In addition, Texas adopted a new capital-sentencing procedure. See Tex.Code Crim.Proc., Art. 37.071 (Supp.1975-1976). That procedure requires the jury to answer three questions in a proceeding that takes place subsequent to the return of a verdict finding a person guilty of one of the above categories of murder. The questions the jury must answer are these:
13
"(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
14
"(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
15
"(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased." Art. 37.071(b) (Supp.1975-1976).
16
If the jury finds that the State has proved beyond a reasonable doubt that the answer to each of the three questions is yes, then the death sentence is imposed. If the jury finds that the answer to any question is no, then a sentence of life imprisonment results. Arts. 37.071(c), (e) (Supp.1975-1976).5 The law also provides for an expedited review by the Texas Court of Criminal Appeals. See Art. 37.071(f) (Supp.1975-1976).
17
The Texas Court of Criminal Appeals has thus far affirmed only two judgments imposing death sentences under its post-Furman law in this case and in Smith v. State, No. 49,809 (Feb. 18, 1976) (rehearing pending; initially reported in advance sheet for 534 S.W.2d but subsequently withdrawn from bound volume). In the present case the state appellate court noted that its law "limits the circumstances under which the State may seek the death penalty to a small group of narrowly defined and particularly brutal offenses. This insures that the death penalty will only be imposed for the most serious crimes (and) . . . that (it) will only be imposed for the same type of offenses which occur under the same types of circumstances." 522 S.W.2d, at 939.
18
While Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose. See McGautha v. California, 402 U.S. 183, 206 n. 16, 91 S.Ct. 1454, 1466, 28 L.Ed.2d 711 (1971); Model Penal Code § 201.6, Comment 3, pp. 71-72 (Tent. Draft No. 9, 1959). In fact, each of the five classes of murders made capital by the Texas statute is encompassed in Georgia and Florida by one or more of their statutory aggravating circumstances. For example, the Texas statute requires the jury at the guilt-determining stage to consider whether the crime was committed in the course of a particular felony, whether it was committed for hire, or whether the defendant was an inmate of a penal institution at the time of its commission. Cf. Gregg v. Georgia, 428 U.S., at 165-166, n. 9, 96 S.Ct., at 2921 n. 9; Proffitt v. Florida, 428 U.S., at 248-249, n. 6, 96 S.Ct., at 2965, n. 6. Thus, in essence, the Texas statute requires that the jury find the existence of a statutory aggravating circumstance before the death penalty may be imposed. So far as consideration of aggravating circumstances is concerned, therefore, the principal difference between Texas and the other two States is that the death penalty is an available sentencing option even potentiay for a smaller class of murders in Texas. Otherwise the statutes are similar. Each requires the sentencing authority to focus on the particularized nature of the crime.
19
But a sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today have held in Woodson v. North Carolina, 428 U.S. 280, 303-305, 96 S.Ct. 2978, 2991-2992, 49 L.Ed.2d 944, to be required by the Eighth and Fourteenth Amendments. For such a system would approach the mandatory laws that we today hold unconstitutional in Woodson and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974.6 A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.
20
Thus, in order to meet the requirement of the Eighth and Fourteenth Amendments, a capital-sentencing system must allow the sentencing authority to consider mitigating circumstances. In Gregg v. Georgia, we today hold constitutionally valid a capital-sentencing system that directs the jury to consider any mitigating factors, and in Proffitt v. Florida we likewise hold constitutional a system that directs the judge and advisory jury to consider certain enumerated mitigating circumstances. The Texas statute does not explicitly speak of mitigating circumstances; it directs only that the jury answer three questions. Thus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors.
21
The second Texas statutory question7 asks the jury to determine "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society" if he were not sentenced to death. The Texas Court of Criminal Appeals has yet to define precisely the meanings of such terms as "criminal acts of violence" or "continuing threat to society." In the present case, however, it indicated that it will interpret this second question so as to allow a defendant to bring to the jury's attention whatever mitigating circumstances he may be able to show:
22
"In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range d severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand." 522 S.W.2d, at 939-940.
23
In the only other case in which the Texas Court of Criminal Appeals has upheld a death sentence, it focused on the question of whether any mitigating factors were present in the case. See Smith v. State, No. 49,809 (Feb. 18, 1976). In that case the state appellate court examined the sufficiency of the evidence to see if a "yes" answer to question 2 should be sustained. In doing so it examined the defendant's prior conviction on narcotics charges, his subsequent failure to attempt to rehabilitate himself or obtain employment, the fact that he had not acted under duress or as a result of mental or emotional pressure, his apparent willingness to kill, his lack of remorse after the killing, and the conclusion of a psychiatrist that he had a sociopathic personality and that his patterns of conduct would be the same in the future as they had been in the past.
24
Thus, Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it. It thus appears that, as in Georgia and Florida, the Texas capital-sentencing procedure guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.
B
25
As in the Georgia and Florida cases, however, the petitioner contends that the substantial legislative changes that Texas made in response to this Court's Furman decision are no more than cosmetic in nature and have in fact not eliminated the arbitrariness and caprice of the system held in Furman to violate the Eighth and Fourteenth Amendments.8
26
(1)
27
The petitioner first asserts that arbitrariness still pervades the entire criminal justice system of Texas from the prosecutor's decision whether to charge a capital offense in the first place and then whether to engage in plea bargaining, through the jury's consideration of lesser included offenses, to the Governor's ultimate power to commute death sentences. This contention fundamentally misinterprets the Furman decision, and we reject it for the reasons set out in our opinion today in Gregg v. Georgia, 428 U.S., at 199, 96 S.Ct., at 2937.
28
(2)
29
Focusing on the second statutory question that Texas requires a jury to answer in considering whether to impose a death sentence, the petitioner argues that it is impossible to predict future behavior and that the question is so vague as to be meaningless. It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge's prediction of the defendant's future conduct.9 And any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose.10 For those sentenced to prison, these same predictions must be made by parole authorities.11 The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.
IV
30
We conclude that Texas' capital-sentencing procedures, like those of Georgia and Florida, do not violate the Eighth and Fourteenth Amendments. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be "wantonly" or "freakishly" imposed, it does not violate the Constitution. Furman v. Georgia, 408 U.S., at 310, 92 S.Ct., at 2762 (Stewart, J., concurring). Accordingly, the judgment of the Texas Court of Criminal Appeals affirmed.
31
It is so ordered.
32
Mr. CHIEF JUSTICE BURGER, concurring in judgment.
33
I concur in the judgment. See Furman v. Georgia, 408 U.S. 238, 375, 92 S.Ct. 2726, 2796, 33 L.Ed.2d 346 (1972) (Burger, C. J., dissenting).
34
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring in the judgment.
35
Following the invalidation of the Texas capital punishment statute in Branch v. Texas, decided with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Texas Legislature re-enacted the death penalty for five types of murder, including murders committed in the course of certain felonies and required that it be imposed providing that, after returning a guilty verdict in such murder cases and after a sentencing proceeding at which all relevant evidence is admissible, the jury answers two questions in the affirmative and a third if raised by the evidence:
36
"(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
37
"(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
38
"(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased." Tex.Code Crim.Proc., Art. 37.071(b) (Su. 1975-1976).
39
The question in this case is whether the death penalty imposed on Jerry Lane Jurek for the crime of felony murder may be carried out consistently with the Eighth and Fourteenth Amendments.
40
The opinion of Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS describes, and I shall not repeat, the facts of the crime and proceedings leading to the imposition of the death penalty when the jury unanimously gave its affirmative answers to the relevant questions posed in the judge's post-verdict instructions. I also agree with that opinion that the judgment of the Texas Court of Criminal Appeals, which affirmed the conviction and judgment, must be affirmed here. 522 S.W.2d 934 (1975).
41
For the reasons stated in my dissent in Roberts v. Louisiana, 428 U.S. 325, 350-356, 96 S.Ct. 3001, 3014-3017, 49 L.Ed.2d 974, I cannot conclude that the Eighth Amendment forbids the death penalty under any and all circumstances. I also cannot agree with petitioner's other major contention that under the new Texas statute and the State's criminal justice system in general, the criminal jury and other law enforcement officers exercise such a range of discretion that the death penalty will be imposed so seldom, so arbitrarily, and so freakishly that the new statute suffers from the infirmities which Branch v. Texas found in its predecessor. Under the revised law, the substantive crime of murder is defined; and when a murder occurs in one of the five circumstances set out in the statute, the death penalty Must be imposed if the jury also makes the certain additional findings against the defendant. Petitioner claims that the additional questions upon which the death sentence depends are so vague that in essence the jury possesses standardless sentencing power; but I agree with Justices STEWART, POWELL, and STEVENS that the issues posed in the sentencing proceeding have a common-sense core of meaning and that criminal jues should be capable of understanding them. The statute does not extend to juries discretionary power to dispense mercy, and it should not be assumed that juries will disobey or nullify their instructions. As of February of this year, 33 persons, including petitioner, had been sentenced to death under the Texas murder statute. I cannot conclude at this juncture that the death penalty under this system will be imposed so seldom and arbitrarily as to serve no useful penological function and hence fall within reach of the decision announced by five Members of the Court in Furman v. Georgia.
42
Nor, for the reasons I have set out in Roberts, 428 U.S., at 348-350, 96 S.Ct., at 3013-3014, and Gregg v. Georgia, 428 U.S. 153, 224-225, 96 S.Ct. 2909, 2948-2949, 49 L.Ed.2d 859, am I convinced that this conclusion should be modified because of the alleged discretion which is exercisable by other major functionaries in the State's criminal justice system. Furthermore, as Justices STEWART, POWELL, and STEVENS state and as the Texas Court of Criminal Appeals has noted, the Texas capital punishment statute limits the imposition of the death penalty to a narrowly defined group of the most brutal crimes and aims at limiting its imposition to similar offenses occurring under similar circumstances. 522 S.W.2d, at 939.
43
I concur in the judgment of affirmance.
44
Mr. Justice BLACKMUN, concurring in the judgment.
45
I concur in the judgment. See Furman v. Georgia, 408 U.S. 238, 405-414, 92 S.Ct. 2726, 2811-2816, 33 L.Ed.2d 346 (1972) (Blackmun, J., dissenting), and Id., at 375, 414 and 465, 92 S.Ct., at 2796, 2816 and 2841.
1
At the time of the charged offense, Texas law provided that:
"Whoever shall voluntarily kill any person within this State shall be guilty of murder. Murder shall be distinguished from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide or which excuse or justify the killing." Tex.Penal Code, Art. 1256 (1973).
Under the new Texas Penal Code (effective Jan. 1, 1974), murder is now defined by § 19.02(a):
"A person commits an offense if he:
"(1) intentionally or knowingly causes the death of an individual;
"(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
"(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual."
Texas law prescribed the punishment for murder as follows:
"(a) Except as provided in subsection (b) of this Article, the punishment for murder shall be confinement in the penitentiary for life or for any term of years not less than two.
"(b) The punishment for murder with malice aforethought shall be death or imprisonment for life if:
"(1) the person murdered a peace officer or fireman who was acting in the lawful discharge of an official duty and who the defendant knew was a peace officer or fireman;
"(2) the person intentionally committed the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, forcible rape, or arson;
"(3) the person committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the promise of remuneration;
"(4) the person committed the murder while escaping or attempting to escape from a penal institution;
"(5) the person, while incarcerated in a penal institution, murdered another who was employed in the operation of the penal institution.
"(c) If the jury does not find beyond a reasonable doubt that the murder was committed under one of the circumstances or conditions enumerated in Subsection (b) of this Article, the defendant may be convicted of murder, with or without malice, under Subsection (a) of this Article or of any other lesser included offense." Tex.Penal Code, Art. 1257 (1973).
Article 1257 has been superseded by § 19.03 of the new Texas Penal Code, which is substantially similar to Art. 1257.
2
The court held a separate hearing to determine whether these statements were given voluntarily, and concluded that they were. The question of the voluntariness of the confessions was also submitted to the jury. The Court of Criminal Appeals affirmed the admissibility of the statements. 522 S.W.2d 934, 943 (1975).
3
The petitioner originally stated that he started choking Wendy when she angered him by criticizing him and his brother for their drinking. In a later statement he said that he choked her after she refused to have sexual relations with him and started screaming.
4
See Infra, at 269.
5
The jury can answer "yes" only if all members agree; it can answer "no" if 10 of 12 members agree. Art. 37.071(d) (Supp.1975-1976). Texas law is unclear as to the procedure to be followed in the event that the jury is unable to answer the questions. See Vernon's Texas Codes Ann. Penal § 19.03, Practice Commentary, p. 107 (1974).
6
When the drafters of the Model Penal Code considered a proposal that would have simply listed aggravating factors as sufficient reasons for imposition of the death penalty, they found the proposal unsatisfactory:
"Such an approach has the disadvantage, however, of according disproportionate significance to the enumeration of aggravating circumstances when what is rationally necessary is . . . the balancing of any aggravations against any mitigations that appear. The object sought is better attained, in our view, by requiring a finding that an aggravating circumstance has been established And a finding that there are no substantial mitigating circumstances." Model Penal Code § 201.6, Comment 3, p. 72 (Tent. Draft No. 9, 1959) (emphasis in original).
7
The Texas Court of Criminal Appeals has not yet construed the first and third questions (which are set out in the text, Supra, at 269); thus it is as yet undetermined whether or not the jury's consideration of those questions would properly include consideration of mitigating circumstances. In at least some situations the questions could, however, comprehend such an inquiry. For example, the third question asks whether the conduct of the defendant was unreasonable in response to any provocation by the deceased. This might be construed to allow the jury to consider circumstances which, though not sufficient as a defense to the crime itself, might nevertheless have enough mitigating force to avoid the death penalty a claim, for example, that a woman who hired an assassin to kill her husband was driven to it by his continued cruelty to her. We cannot, however, construe the statute; that power is reserved to the Texas courts.
8
See Branch v. Texas, decided with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
9
See, E. g., American Bar Association Project on Standards for Criminal Justice, Pretrial Release § 5.1(a) (Approved Draft 1968):
"It should be presumed that the defendant is entitled to be released on order to appear or on his own recognizance. The presumption may be overcome by a finding that there is substantial risk of nonappearance . . .. In capital cases, the defendant may be detained pending trial if the facts support a finding that the defendant is likely to commit a serious crime, intimidate witnesses or otherwise interfere with the administration of justice or will flee if released."
10
See, E. g., Id., Sentencing Alternatives and Procedures § 2.5(c): "A sentence not involving total confinement is to be preferred in the absence of affirmative reasons to the contrary. Examples of legitimate reasons for the selection of total confinement in a given case are:
"(i) Confinement is necessary in order to protect the public from further criminal activity by the defendant . . . ."
A similar conclusion was reached by the drafters of the Model Penal Code:
"The Court shall deal with a person who has been convicted of a crime without imposing sentence of imprisonment unless, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, it is of the opinion that his imprisonment is necessary for protection of the public because:
"(a) there is undue risk that during the period of a suspended sentence or probation the defendant will commit another crime." Model Penal Code § 7.01(1) (Proposed Official Draft 1962).
11
See, E. g., Id., § 305.9(1):
"Whenever the Board of Parole considers the first release of a prisoner who is eligible for release on parole, it shall be the policy of the Board to order his release, unless the Board is of the opinion that his release should be deferred because:
"(a) there is substantial risk that he will not conform to the conditions of parole . . . ."
| 01
|
428 U.S. 325
96 S.Ct. 3001
49 L.Ed.2d 974
Stanislaus ROBERTS, Petitioner,v.State of LOUISIANA.
No. 75-5844.
Argued March 30-31, 1976.
Decided July 2, 1976.
Rehearing Denied Oct. 12, 1976.
See 429 U.S. 890, 97 S.Ct. 248.
Syllabus
Petitioner was found guilty of first-degree murder and sentenced to death under amended Louisiana statutes enacted after this Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. The Louisiana Supreme Court affirmed, rejecting petitioner's contention that the new procedure for imposing the death penalty is unconstitutional. The post-Furman legislation mandates imposition of the death penalty whenever, with respect to five categories of homicide (here killing during the perpetration of an armed robbery), the jury finds the defendant had a specific intent to kill or to inflict great bodily harm. If a verdict of guilty of first-degree murder is returned, death is mandated regardless of any mercy recommendation. Every jury is instructed on the crimes of second-degree murder and manslaughter and permitted to consider those verdicts even if no evidence supports the lesser verdicts; and if a lesser verdict is returned it is treated as an acquittal of all greater charges. Held: The judgment is reversed insofar as it upheld the death sentence, and the case is remanded. Pp. 331-336; 336; 336-337.
La., 319 So.2d 317, reversed and remanded.
Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS concluded that:
1
1. The imposition of the death penalty is not per se cruel and unusual punishment violative of the Eighth and Fourteenth Amendments. Gregg v. Georgia, 428 U.S. 153, 168-187, 96 S.Ct. 2909, 2922-2932, 49 L.Ed.2d 859. P. 331.
2
2. Louisiana's mandatory death penalty statute violates the Eighth and Fourteenth Amendments. Pp. 331-336.
3
(a) Though Louisiana has adopted a different and somewhat narrower definition of first-degree murder than North Carolina, the difference is not of constitutional significance, and the Louisiana statute imposing a mandatory death sentence is invalid for substantially the same reasons as are detailed in Woodson v. North Carolina, 428 U.S. 280, 289-296, 96 S.Ct. 2978, 2984-2988, 49 L.Ed.2d 944. Pp. 331-334.
4
(b) Though respondent State claims that it has adopted satisfactory procedures to comply with Furman's requirement that standardless jury discretion be replaced by procedures that safeguard against the arbitrary and capricious imposition of death sentences, that objecve has not been realized, since the responsive-verdict procedure not only lacks standards to guide the jury in selecting among first-degree murderers, but it plainly invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel that the death penalty is inappropriate. See Woodson, 428 U.S. at 302-303, 96 S.Ct. at 2990-2991. Pp. 334-336.
5
Mr. Justice BRENNAN concurred in the judgment for the reasons stated in his dissenting opinion in Gregg v. Georgia, 428 U.S. at 227, 96 S.Ct. at 2971. P. 336.
6
Mr. Justice MARSHALL, being of the view that death is a cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, concurred in the judgment. Gregg v. Georgia, ante, 428 U.S. at 231, 96 S.Ct. at 2973 (Marshall, J., dissenting). P. 336.
7
Anthony G. Amsterdam, Stanford, Cal., for petitioners.
8
John L. Hill, Austin, Tex., for the State of Texas.
9
James L. Babin, Lake Charles, La., for the State of Louisiana.
10
By special leave of Court William E. James, Los Angeles, Cal., for the State of California, as amicus curiae.
11
Solicitor Gen. Robert H. Bork, Washington, D. C., for the United States, as amicus curiae.
12
Judgment of the Court, and opinion of Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS, announced by Mr. Justice STEVENS.
13
The question in this case is whether the imposition of the sentence of death for the crime of first-degree murder under the law of Louisiana violates the Eighth and Fourteenth Amendments.
14
* On August 18, 1973, in the early hours of the morning, Richard G. Lowe was found dead in the office of the Lake Charles, La., gas station where he worked. He had been shot four times in the head. Four men the petitioner, Huey Cormier, Everett Walls, and Calvin Arceneaux were arrested for complicity in the murder. The petitioner was subsequently indicted by a grand jury on a presentment that he "(d)id unlawfully with the specific intent to kill or to inflict great bodily harm, while engaged in the armed robbery of Richard G. Lowe, commit first degree murder by killing one Richard G. Lowe, in violation of Section One (1) of LSA-R.S. 14:30."
15
At the petitioner's trial, Cormier, Walls, and Arceneaux testified for the prosecution. Their testimony established that just before midnight on August 17, the petitioner discussed with Walls and Cormier the subject of "ripping off that old man at the station," and that on the early morning of August 18, Arceneaux and the petitioner went to the gas station on the pretext of seeking employment. After Lowe told them that there were no jobs available they surreptitiously made their way into the office of the station, where Arceneaux removed a pistol from a desk drawer. The petitioner insisted on taking possession of the pistol. When Lowe returned to the office, the petitioner and Arceneaux assaulted him and then shoved him into a small back room. Shortly thereafter a car drove up. Arceneaux went out and, posing as the station attendant, sold the motorist about three dollars' worth of gasoline. While still out in front, Arceneaux heard four shots from inside the station. He wenback inside and found the petitioner gone and Lowe lying bleeding on the floor. Arceneaux grabbed some empty "money bags" and ran.
16
The jury found the petitioner guilty as charged. As required by state law, the trial judge sentenced him to death. The Supreme Court of Louisiana affirmed the judgment. 319 So.2d 317 (1975). We granted certiorari, 423 U.S. 1082, 96 S.Ct. 1091, 47 L.Ed.2d 94 (1976), to consider whether the imposition of the death penalty in this case violates the Eighth and Fourteenth Amendments of the United States Constitution.
II
17
The Louisiana Legislature in 1973 amended the state statutes relating to murder and the death penalty in apparent response to this Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Before these amendments, Louisiana law defined the crime of "murder" as the killing of a human being by an offender with a specific intent to kill or to inflict great bodily harm, or by an offender engaged in the perpetration or attempted perpetration of certain serious felonies, even without an intent to kill.1 The jury was free to return any of four verdictss guilty, guilty without capital punishment, guilty of manslaughter, or not guilty.2
18
In the 1973 amendments, the legislature changed this discretionary statute to a wholly mandatory one, requiring that the death penalty be imposed whenever the jury finds the defendant guilty of the newly defined crime of first-degree murder. The revised statute, under which the petitioner was charged, convicted, and sentenced, provides in part that first-degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnaping, aggravated rape, or armed robbery.3 In a first-degree murder case, the four responsive verdicts are now guilty, guilty of second-degree murder, guilty of manslaughter, and not guilty. La.Code Crim.Proc.Ann., Art. 814(A)(1) (Supp.1975). The jury must be instructed on all these verdicts, whether or not raised by the evidence or requested by the defendant.4
19
Under the former statute, the jury had the unfettered choice in any case where it found the defendant guilty of murder of returning either a verdict of guilty, which required the imposition of the death penalty, or a verdict of guilty without capital punishment, in which case the punishment was imprisonment at hard labor for life.5 Under the new statute the jury is required to determine only whether both conditions existed at the time of the killing; if there was a specific intent to kill or to inflict great bodily harm, and the offender was engaged in an armed robbery, the offense is first-degree murder and the mandatory punishment is death. If only one of these conditions existed, the offense is second-degree murder and the mandatory punishment is imprisonment at hard labor for life. Any qualification or recommendation which a jury might add to its verdict such as a recommendation of mercy where the verdict is guilty of first-degree murder is without any effect.6
III
20
The petitioner argues that the imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. We reject this argument for the reasons stated today in Gregg v. Georgia, 428 U.S. 153, at 168-187, 96 S.Ct. 2909, at 2922-2932, 49 L.Ed.2d 859.
IV
21
Louisiana, like North Carolina, has responded to Furman by replacing discretionary jury sentencing in capital cases with mandatory death sentences. Under the present Louisiana law, all persons found guilty of first-degree murder, aggravated rape, aggravated kidnaping, or treason are automatically sentenced to death. See La.Rev.Stat.Ann. §§ 14:30, 14:42, 14:44, 14:113 (1974).
22
There are two major differences between the Louisiana and North Carolina statutes governing first-degree murder cases. First, the crime of first-degree murder in North Carolina includes any willful, deliberate, and premeditated homicide and any felony murder, whereas Louisiana limits first-degree murder to five categories of homicide killing in connection with the commission of certain felonies; killing of a fireman or a peace officer in the performance of his duties; killing for remuneration; killing with the intent to inflict harm on more than one person; and killing by a person with a prior murder conviction or under a current life sentence.7 Second, Louisiana employs a unique system of responsive verdicts under which the jury in every first-degree murder case must be instructed on the crimes of first-degree murder, second-degree murder, and manslaughter and must be provided with the verdicts of guilty, guilty of second-degree murder, guilty of manslaughter, and not guilty. See La.Code Crim.Proc.Ann., Arts. 809, 814 (Supp.1975); State v. Cooley, 260 La. 768, 771, 257 So.2d 400, 401 (1972). By contrast, in North Carolina instructions on lesser included offenses must have a basis in the evidence adduced at trial. See State v. Spivey, 151 N.C. 676, 65 S.E. 995 (1909); cf. State v. Vestal, 283 N.C. 249, 195 S.E.2d 297 (1973).
23
That Louisiana has adopted a different and somewhat narrower definition of first-degree murder than North Carolina is not of controlling constitutional significance. The history of mandatory death penalty statutes indicates a firm societal view that limiting the scope of capital murder is an inadequate response to the harshness and inflexibility of a mandatory death sentence statute. See Woodson v. North Carolina, 428 U.S. 280, at 289-296, 96 S.Ct. 2978, at 2984-2987, 49 L.Ed.2d 944. A large group of jurisdictions first responded to the unacceptable severity of the common-law rule of automatic death sentences for all murder convictions by narrowing the definition of capital homicide. Each of these jurisdictions found that approach insufficient and subsequently substituted discretionary sentencing for mandatory death sentences. See Woodson v. North Carolina, ante, at 290-292, 96 S.Ct., at 2984-2985.8
24
The futility of attempting to solve the problems of mandatory death penalty statutes by narrowing the scope of the capital offense stems from our society's rejection of the belief that "every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender." Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949). See also Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937). As the dissenting Justices in Furman noted, the 19th century movement away from mandatory death sentences was rooted in the recognition that "individual culpability is not always measured by the category of crime committed." 408 U.S., at 402, 92 S.Ct., at 2810 (Burger, C. J., joined by BLACKMUN, POWELL, and REHNQUIST, JJ., dissenting).
25
The constitutional vice of mandatory death sentence statutes lack of focus on the circumstances of the particular offense and the character and propensities of the offender is not resolved by Louisiana's limitation of first-degree murder to various categories of killings. The diversity of circumstances presented in cases falling within the single category of killings during the commission of a specified felony, as well as the variety of possible offenders involved in such crimes, underscores the rigidity of Louisiana's enactment and its similarity of the North Carolina statute. Even the other more narrowly drawn categories of first-degree murder in the Louisiana law afford no meaningful opportunity for consideration of mitigating factors presented by the circumstances of the particular crime or by the attributes of the individual offender.9
26
Louisiana's mandatory death sentence statute also fails to comply with Furman's requirement that standardless jury discretion be replaced by procedures that safeguard against the arbitrary and capricious imposition of death sentences. The State claims that it has adopted satisfactory procedures by taking all sentencing authority from juries in capital murder cases. This was accomplished, according to the State, by deleting the jury's pre-Furman authority to return a verdict of guilty without capital punishment in any murder case. See La.Rev.Stat.Ann. § 14:30 (1974); La.Code Crim.Proc.Ann., Arts. 814, 817 (Supp.1975).10
27
Under the current Louisiana system, however, every jury in a first-degree murder case is instructed on the crimes of second-degree murder and manslaughter and permitted to consider those verdicts even if there is not a scintilla of evidence to support the lesser verdicts. See La.Code Crim.Proc.Ann., Arts. 809, 814 (Supp.1975). And, if a lesser verdict is returned, it is treated as an acquittal of all greater charges. See La.Code Crim.Proc.Ann., Art. 598 (Supp.1975). This responsive verdict procedure not only lacks standards to guide the jury in selecting among first-degree murderers, but it plainly invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate. There is an element of capriciousness in making the jurors' power to avoid the death penalty dependent on their willingness to accept this invitation to disregard the trial judge's instructions. The Louisiana procedure neither provides standards to annel jury judgments nor permits review to check the arbitrary exercise of the capital jury's de facto sentencing discretion. See Woodson v. North Carolina, 428 U.S., at 302-303, 96 S.Ct., at 2990-2991.11
28
The Louisiana statute thus suffers from constitutional deficiencies similar to those identified in the North Carolina statute in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944. As in North Carolina, there are no standards provided to guide the jury in the exercise of its power to select those first-degree murderers who will receive death sentences, and there is no meaningful appellate review of the jury's decision. As in North Carolina, death sentences are mandatory upon conviction for first-degree murder. Louisiana's mandatory death sentence law employs a procedure that was rejected by that State's legislature 130 years ago12 and that subsequently has been renounced by lislatures and juries in every jurisdiction in this Nation. See Woodson v. North Carolina, 428 U.S., at 291-296, 96 S.Ct., at 2985-2987. The Eighth Amendment, which draws much of its meaning from "the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion), simply cannot tolerate the reintroduction of a practice so thoroughly discredited.
29
Accordingly, we find that the death sentence imposed upon the petitioner under Louisiana's mandatory death sentence statute violates the Eighth and Fourteenth Amendments and must be set aside. The judgment of the Supreme Court of Louisiana is reversed insofar as it upheld the death sentence imposed upon the petitioner and the case is remanded for further proceedings not inconsistent with this opinion.
30
It is so ordered.
31
Mr. Justice BRENNAN, concurring in the judgment.
32
For the reasons stated in my dissenting opinion in Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2971, 49 L.Ed.2d 859, I concur in the judgment that sets aside the death sentence imposed under the Louisiana death sentence statute as violative of the Eighth and Fourteenth Amendments.
33
Mr. Justice MARSHALL, concurring in the judgment.
34
For the reasons stated in my dissenting opinion in Gregg v. Georgia, 428 U.S. 153, 231, 96 S.Ct. 2909, 2973, 49 L.Ed.2d 859, I am of the view that the death penalty is a cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. I therefore concur in the Court's judgment.
35
Mr. Chief Justice BURGER, dissenting.
36
I dissent for the reasons set forth in my dissent in Furman v. Georgia, 408 U.S. 238, 375, 92 S.Ct. 2726, 2796, 33 L.Ed.2d 346 (1972).
37
Mr. Justice WHITE, with whom THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST join, dissenting.
38
Under the Louisiana statutes in effect prior to 1973, there were three grades of criminal homicide murder, manslaughter, and negligent homicide. La.Rev.Stat.Ann. § 14:29 (1951). Murder was punishable by death, La.Rev.Stat.Ann. § 14:30 (1951); but a jury finding a defendant guilty of murder was empowered to foreclose the death penalty by returning a verdict of "guilty without capital punishment." La.Rev.Stat.Ann. § 15:409 (1951). Following Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which the Louisiana Supreme Court held effectively to have invalidated the Louisiana death penalty,1 the statutes were amended to provide four grades of criminal homicide: first-degree murder, second-degree murder, manslaughter, and negligent homicide. La.Rev.Stat.Ann. § 14:29 (1974 Supp.). First-degree murder was defined as the killing of a human in prescribed situations, including where the offender, with specific intent to kill or to inflict great bodily harm, takes another's life while perpetrating or attempting to perpetrate aggravated kidnaping, aggravated rape, or armed robbery. La.Rev.Stat.Ann. § 14:30 (1974). The new statute provides that "whoever commits the crime of first degree murder shall be punished by death," and juries are no longer authorized to return guilty verdicts without capital punishment.2 As had been the case before 1973, the possible 39¢sjury verdicts in rst-degree murder cases are also specified by statute. As amended in 1973, these "responsive verdicts," as to which juries were to be instructed in every first-degree murder case, are: "guilty," "guilty of second degree murder," "guilty of manslaughter," and "not guilty." La.Code Crim.Proc., Art. 814(A)(1) (Supp. 1975).
39
The issue in this case is whether the imposition of the death penalty under this statutory scheme upon a defendant found guilty of first-degree murder is consistent with the Eighth Amendment, which forbids the infliction of "cruel and unusual punishments" and which by virtue of the Fourteenth Amendment is binding upon the States. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). I am convinced that it is and dissent from the Court's judgment.
40
* On August 18, 1973, Richard G. Lowe of Lake Charles, La., was found dead in the Texaco service station where he worked as an attendant. He had been shot four times in the head with a pistol which was not found on the scen but which, as it turned out, had been kept by the station manager in a drawer near the cash register. The gun was later recovered from the owner of a bar and was traced to petitioner, who was charged with first-degree murder in an indictment alleging that "with the specific intent to kill or to inflict great bodily harm" and "while engaged in . . . armed robbery," he had killed Richard G. Lowe.
41
At the trial Calvin Arceneaux, testifying for the prosecution, stated that he had participated in the robbery and that he had taken the gun from the drawer and given it to petitioner, who had said he wanted it because he had "always wanted to kill a white dude." The attendant, who had been overpowered, remained inside the station with petitioner while Arceneaux, posing as the station attendant, went outside to tend a customer. According to Arceneaux, Lowe was shot during this interval. Another witness, Everett Walls, testified that he had declined to participate in the robbery but by chance had seen the petitioner at the station with a gun in his hand. According to a third witness, Huey Cormier, who also had refused petitioner's invitation to participate, petitioner had come to Cormier's house early on August 18 and had said that he "had just shot that old man . . . at the filling station." Record 134-135.
42
The case went to the jury under instructions advising the jury of the State's burden of proof and of the charge in the indictment that petitioner had killed another person with "specific intent to kill or to inflict great bodily harm and done when the accused was engaged in the perpetration of armed robbery." The elements which the State was required to prove beyond reasonable doubt were explained, including the elements of first-degree murder and of armed robbery.3 In accordance with the statute the court also explained the possible verdicts other than first-degree murder: "The law provides that in a trial of murder in the first degree, if the jury is not convinced beyond a reasonable doubt that the accused is guilty of the crime of murder in the first degree, but is convinced beyond a reasonable doubt that he is guilty of murder in the second degree, it shouldender a verdict of guilty of murder in the second degree." The elements of second-degree murder and also of manslaughter were then explained, whereupon the court instructed:
43
"If you should conclude that the defendant is not guilty of murder in the first degree, but you are convinced beyond a reasonable doubt that he is guilty of murder in the second degree it would be your duty to find that defendant guilty of murder in the second degree.
44
"If you should conclude that the defendant is not guilty of murder in the first degree or murder in the second degree, but you are convinced beyond a reasonable doubt that he is guilty of manslaughter, it would then be your duty to find the defendant guilty of manslaughter.
45
"If you should conclude that the defendant is not guilty of murder in the first degree, or murder in the second degree or manslaughter, it would then be your duty to find the defendant not guilty."
Finally, the court instructed the jury:
46
"To summarize, you may return any one of the following verdicts:
47
"1. Guilty as charged.
48
"2. Guilty of second degree murder.
49
"3. Guilty of manslaughter.
50
"4. Not guilty.
51
"Accordingly, I will now set forth the proper form of each verdict that may be rendered, reminding you tt only one verdict shall be rendered.
52
"If you are convinced beyond a reasonable doubt that the defendant is guilty of the offense charged, the form of your verdict should be: 'We, the jury, find the defendant guilty as charged.'
53
"If you are not convinced beyond a reasonable doubt that the defendant is guilty of murder in the first degree but you are convinced beyond a reasonable doubt that the defendant is guilty of murder in the second degree, the form of your verdict would be: 'We, the jury, find the defendant guilty of second degree murder.'
54
"If you are not convinced beyond a reasonable doubt that the defendant is guilty of murder in the first degree or murder in the second degree, but you are convinced beyond a reasonable doubt that the defendant is guilty of manslaughter, the form of your verdict would be: 'We, the jury, find the defendant guilty of manslaughter.'
55
"If you are not convinced that the defendant is guilty of murder in the first degree, murder in the second degree or manslaughter, the form of your verdict would be: 'We, the jury, find the defendant not guilty.' "
56
The jury found the defendant guilty of first-degree murder and the death sentence was imposed. On appeal, the conviction was affirmed, the Louisiana Supreme Court rejecting petitioner's challenge to the death penalty based on the Eighth Amendment. 319 So.2d 317 (1975).
II
57
Petitioner mounts a double attack on the death penalty imposed upon him: First, that the statute under which his sentence was imposed is too little different from the provision at issue in Furman v. Georgia to escape the strictures of our decision in that case; second, that death is a cruel and unusual punishment for any cri committed by any defendant under any conditions, an argument presented in Furman and there rejected by four of the six Justices who addressed the issue. I disagree with both submissions.
58
I cannot conclude that the current Louisiana first-degree murder statute is insufficiently different from the statutes invalidated in Furman's wake to avoid invalidation under that case. As I have already said, under prior Louisiana law, one of the permissible verdicts that a jury in any capital punishment case was authorized by statute and by its instructions to return was "guilty without capital punishment." Dispensing with the death penalty was expressly placed within the uncontrolled discretion of the jury and in no case involved a breach of its instructions or the controlling statute. A guilty verdict carrying capital punishment required a unanimous verdict; any juror, consistent with his instruction and whatever the evidence might be, was free to vote for a verdict of guilty without capital punishment, thereby, if he persevered, at least foreclosing a capital punishment verdict at that trial.
59
Under this or similar jury-sentencing arrangements which were in force in Louisiana, Georgia, and most other States that authorized capital punishment, the death penalty came to be imposed less and less frequently, so much so that in Furman v. Georgia the Court concluded that in practice criminal juries, exercising their lawful discretion, were imposing it so seldom and so freakishly and arbitrarily that it was no longer serving the legitimate ends of criminal justice and had come to be cruel and unusual punishment violative of the Eighth Amendment. It was in response to this judgment that Louisiana sought to re-enact the death penalty as a constitutionally valid punishment by redefining the crime of first-degree murder and by making death the mandatory punishment for those found guilty of that crime.
60
To implement this aim, the present Louisiana law eliminated the "guilty without capital punishment" verdict. Jurors in first-degree murder cases are no longer instructed that they have discretion to withhold capital punishment. Their instructions now are to find the defendant guilty if they believe beyond a reasonable doubt that he committed the crime with which he is charged. A verdict of guilty carries a mandatory death sentence. In the present case, the jury was instructed as to the specific elements constituting the crime of felony murder which the indictment charged. They were also directed that if they believed beyond reasonable doubt that Roberts committed these acts, they were to return a verdict of guilty as charged in the indictment. The jury could not, if it believed the defendant had committed the crime, nevertheless dispense with the death penalty.
61
The difference between a jury's having and not having the lawful discretion to spare the life of the defendant is apparent and fundamental. It is undeniable that the unfettered discretion of the jury to save the defendant from death was a major contributing factor in the developments which led us to invalidate the death penalty in Furman v. Georgia. This factor Louisiana has now sought to eliminate by making the death penalty compulsory upon a verdict of guilty in first-degree murder cases. As I see it, we are now in no position to rule that the State's present law, having eliminated the overt discretionary power of juries, suffers from the same constitutional infirmities which led this Court to invalidate the Georgia death penalty statute in Furman v. Georgia.
62
Eveno, petitioner submits that in every capital case the court is required to instruct the jury with respect to lesser included offenses and that the jury therefore has unlimited discretion to foreclose the death penalty by finding the defendant guilty of a lesser included offense for which capital punishment is not authorized. The difficulty with the argument is illustrated by the instructions in this case. The jury was not instructed that it could in its discretion convict of a lesser included offense. The jury's plain instructions, instead, were to return a verdict of guilty of murder as charged if it believed from the evidence that Roberts had committed the specific acts constituting the offense charged and defined by the court. Only if they did not believe Roberts had committed the acts charged in the indictment were the jurors free to consider whether he was guilty of the lesser included offense of second-degree murder, and only if they did not find beyond a reasonable doubt that Roberts was guilty of second-degree murder were they free to consider the offense of manslaughter. As the Supreme Court of Louisiana said in State v. Hill, 297 So.2d 660, 662 (1974), and repeated in this case, 319 So.2d, at 322, "the use of these lesser verdicts . . . is contingent upon the jury finding insufficient evidence to convict the defendant of first degree murder, with which he is charged." See also State v. Selman, La., 300 So.2d 467, 473 (La.1974), cert. pending, No. 74-6065.
63
It is true that the jury in this case, like juries in other capital cases in Louisiana and elsewhere, may violate its instructions and convict of a lesser included offense despite the evidence. But for constitutional purposes I am quite unwilling to equate the raw power of nullification with the unlimited discretion extended jurors under prior Louisiana statutes. In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), we rejected the argument that vesting standardless sentencing discretion in the jury was unconstitutional under the Due Process Cuse. In arriving at that judgment, we noted that the practice of jury sentencing had emerged from the "rebellion against the common-law rule imposing a mandatory death sentence on all convicted murderers," Id., at 198, 91 S.Ct., at 1462, and from the unsatisfactory experience with attempting to define the various grades of homicide and to specify those for which the death penalty was required. Vesting complete sentencing power in the jury was the upshot. The difficulties adverted to in McGautha, however, including that of jury nullification, are inadequate to require invalidation of the Louisiana felony-murder rule on the ground that jurors will so often and systematically refuse to follow their instructions that the administration of the death penalty under the current law will not be substantially different from that which obtained under prior statutes.
64
Nor am I convinced that the Louisiana death penalty for first-degree murder is substantially more vulnerable because the prosecutor is vested with discretion as to the selection and filing of charges, by the practice of plea bargaining or by the power of executive clemency. Petitioner argues that these characteristics of the criminal justice system in Louisiana, combined with the discretion arguably left to the jury as discussed above, insure that the death penalty will be as seldom and arbitrarily applied as it was under the predecessor statutes. The Louisiana statutes, however, define the elements of first-degree murder, and I cannot accept the assertion that state prosecutors will systematically fail to file first-degree murder charges when the evidence warrants it or to seek convictions for first-degree murder on less than adequate evidence. Of course, someone Must exercise discretion and judgment as to what charges are to be filed and against whom; but this essential process is nothing more than the rational enforcement of the State's criminal law and the sensible operation of the criminal jusce system. The discretion with which Louisiana's prosecutors are invested and which appears to be no more than normal, furnishes no basis for inferring that capital crimes will be prosecuted so arbitrarily and infrequently that the present death penalty statute is invalid under Furman v. Georgia.
65
I have much the same reaction to plea bargaining and executive clemency. A prosecutor may seek or accept pleas to lesser offenses where he is not confident of his first-degree murder case, but this is merely the proper exercise of the prosecutor's discretion as I have already discussed. So too, as illustrated by this case and the North Carolina case, Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944, some defendants who otherwise would have been tried for first-degree murder, convicted, and sentenced to death are permitted to plead to lesser offenses because they are willing to testify against their codefendants. This is a grisly trade, but it is not irrational; for it is aimed at insuring the successful conclusion of a first-degree murder case against one or more other defendants. Whatever else the practice may be, it is neither inexplicable, freakish, nor violative of the Eighth Amendment. Nor has it been condemned by this Court under other provisions of the Constitution. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). See also Chaffin v. Stynchcombe, 412 U.S. 17, 30-31, 93 S.Ct. 1977, 1984, 36 L.Ed.2d 714 (1973).
66
As for executive clemency, I cannot assume that this power, exercised by governors and vested in the President by Art. II, § 2, of the Constitution, will be used in a standardless and arbitrary manner. It is more reasonable to expect the power to be exercised by the Executive Branch whenever it is concluded that the criminal justice system has unjustly convicted a defendant of first-degree murder and sentenced him to death. The country's eerience with the commutation power does not suggest that it is a senseless lottery, that it operates in an arbitrary or discriminatory manner, or that it will lead to reducing the death penalty to a merely theoretical threat that is imposed only on the luckless few.
67
I cannot conclude, as do Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS (hereinafter the plurality), that under the present Louisiana law, capital punishment will occur so seldom, discriminatorily, or freakishly that it will fail to satisfy the Eighth Amendment as construed and applied in Furman v. Georgia.
III
68
I also cannot agree with the petitioner's other basic argument that the death penalty, however imposed and for whatever crime, is cruel and unusual punishment. The opposing positions on this issue, as well as the history of the death penalty, were fully canvassed by various Justices in their separate opinions in Furman v. Georgia, and these able and lucid presentations need not be repeated here. It is plain enough that the Constitution drafted by the Framers expressly made room for the death penalty. The Fifth Amendment provides that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . " and that no person shall be "twice put in jeopardy of life or limb . . . nor be deprived of life . . . without due process of law." The Fourteenth Amendment, adopted three-quarters of a century later, likewise enjoined the States from depriving any person of "his life" without due process of law. Since the very first Congress, federal law has defined crimes for which the death penalty is authorized. Capital punishment has also been part of the criminal justice system of the great majority of t States ever since the Union was first organized. Until Furman v. Georgia, this Court's opinions, if they did not squarely uphold the death penalty, consistently assumed its constitutionality. Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879); In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947); McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Trop v. Dulles, 356 U.S. 86, 99, 78 S.Ct. 590, 597, 2 L.Ed.2d 630 (1958), four Members of the Court Mr. Chief Justice Warren and Justices Black, Douglas, and Whittaker agreed that "(w)hatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment and they are forceful the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty."
69
Until Furman v. Georgia, this was the consistent view of the Court and of every Justice who in a published opinion had addressed the question of the validity of capital punishment under the Eighth Amendment. In Furman, it was concluded by at least two Justices4 that the death penalty had become unacceptable to the great majority of the people of this country and for that reason, alone or combined with other reasons, was invalid under the Eighth Amendment, which must be construed and applied to reflect the evolving moral standards of the country. Trop v. Dulles, supra, at 111, 78 S.Ct., at 6; Weems v. United States, 217 U.S. 349, 378, 30 S.Ct. 544, 553, 54 L.Ed. 793 (1910). That argument, whether or not accurate at that time, when measured by the manner in which the death penalty was being administered under the then-prevailing statutory schemes, is no longer descriptive of the country's attitude. Since the judgment in Furman, Congress and 35 state legislatures re-enacted the death penalty for one or more crimes.5 All of these States authorize the death penalty for murder of one kind or another With these profound developments in mind, I cannot say that capital punishment has been rejected by or is offensive to the prevailing attitudes and moral presuppositions in the United States or that it is always an excessively cruel or severe punishment or always a disproportionate punishment for any crime for which it might be imposed.6 These grounds for invalidating the death penalty are foreclosed by recent events, which this Court must accept as demonstrating that capital punishment is acceptable to the contemporary community as just punishment for at least some intentional killings.
70
It is apparent also that Congress and 35 state legislatures are of the view that capital punishment better serves the ends of criminal justice than would life imprisonment and that it is therefore not excessive in the sense that it serves no legitimate legislative or social ends. Petitioner Roberts, to the contrary, submits that life imprisonment obviously would better serve the end of reformation or rehabilitation and that there is no satisfactory evidence that punishing by death serves more effectively than does life imprisonment the other major ends of imposing serious criminal sanctions: incapacitation of the prisoner, the deterrence of others, and moral reenforcement and retribution. The death penalty is therefore cruel and unusual, it is argued, because it is the purposeless taking of life and the needless imposition of suffering.
71
The widespread re-enactment of the death penalty, it seems to me, answers any claims that life imprisonment is adequate punishment to satisfy the need for reprobation or retribution. It also seems clear enough that death finally forecloses the possibility that a prisoner will commit further crimes, whereas life imprisonment does not. This leaves the question of general deterrence as the principal battleground: Does the death penalty more effectively deter others from crime than does the threat of life imprisonment?
72
The debate on this subject started generations ago and is still in progress. Each side has a plethora of fact and opinion in support of its position,7 some of it quite old and some of it very n; but neither has yet silenced the other. I need not detail these conflicting materials, most of which are familiar sources. It is quite apparent that the relative efficacy of capital punishment and life imprisonment to deter others from crime remains a matter about which reasonable men and reasonable legislators may easily differ. In this posture of the case, it would be neither a proper or wise exercise of the power of judicial review to refuse to accept the reasonable conclusions of Congress and 35 state legislatures that there are indeed certain circumstances in which the death penalty is the more efficacious deterrent of crime.
73
It will not do to denigrate these legislative judgments as some form of vestigial savagery or as purely retributive in motivation; for they are solemn judgments, reasonably based, that imposition of the death penalty will save the lives of innocent persons. This concern for life and human values and the sincere efforts of the States to pursue them are matters of the greatest moment with which the judiciary should be most reluctant to interfere. The issue is not whether, had we been legislators, we would have supported or opposed the capital punishment statutes presently before us. The question here under discussion is whether the Eighth Amendment requires us to interfere with the enforcement of these statutes on the grounds that a sentence of life imprisonment for the crimes at issue would as well have served the ends of criminal justice. In my view, the Eighth Amendment provides no warrant for overturning these convictions on these grounds.
IV
74
The plurality offers two additional reasons for invalidating the Louisiana statute, neither of which had been raised by the parties and with both of which I disagree.
75
The plurality holds the Louisiana statute unconstitutional for want of a separate sentencing proceeding in which the sentencing authority may focus on the sentence and consider some or all of the aggravating and mitigating circumstances. In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), after having heard the same issues argued twice before in Maxwell v. Bishop, see 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), we specifically rejected the claims that a defendant's "constitutional rights were infringed by permitting the jury to impose the death penalty without governing standards" and that "the jury's imposition of the death sentence in the same proceeding and verdict as determined the issue of guilt was (not) constitutionally permissible." 402 U.S., at 185, 91 S.Ct. at 1456. With respect to the necessity of a bifurcated criminal trial, we had reached essentially the same result in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). In spite of these cases, the plurality holds that the State must provide a procedure under which the sentencer may separately consider the character and record of the individual defendant, along with the circumstances of the particular offense, including any mitigating circumstances that may exist. For myself, I see no reason to reconsider McGautha and would not invalidate the Louisiana statute for its failure to provide what McGautha Held it need not provide. I still share the concluding remarks of the Court in McGautha v. California:
76
"It may well be, as the American Law Institute and the National Commission on Reform of Federal Criminal Laws have concluded, that bifurcated trials and criteria for jury sentencing discretion e superior means of dealing with capital cases if the death penalty is to be retained at all. But the Federal Constitution, which marks the limits of our authority in these cases, does not guarantee trial procedures that are the best of all worlds, or that accord with the most enlightened ideas of students of the infant science of criminology, or even those that measure up to the individual predilections of members of this Court. See Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). The Constitution requires no more than that trials be fairly conducted and that guaranteed rights of defendants be scrupulously respected. From a constitutional standpoint we cannot conclude that it is impermissible for a State to consider that the compassionate purposes of jury sentencing in capital cases are better served by having the issues of guilt and punishment determined in a single trial than by focusing the jury's attention solely on punishment after the issue of guilt has been determined.
77
"Certainly the facts of these gruesome murders bespeak no miscarriage of justice. The ability of juries, unassisted by standards, to distinguish between those defendants for whom the death penalty is appropriate punishment and those for whom imprisonment is sufficient is indeed illustrated by the discriminating verdict of the jury in McGautha's case, finding Wilkinson the less culpable of the two defendants and sparing his life.
78
"The procedures which petitioners challenge are those by which most capital trials in this country are conducted, and by which all were conducted until a few years ago. We have determined that these procedures are consistent with the rights to which petitioners were constitutionally entitled, and that their trials were entirely fair. Having reached these conclusions we have performed our task of msuring the States' process by federal constitutional standards . . .." 402 U.S., at 221-222, 91 S.Ct., at 1474.
79
Implicit in the plurality's holding that a separate proceeding must be held at which the sentencer may consider the character and record of the accused is the proposition that States are constitutionally prohibited from considering any crime, no matter how defined, so serious that every person who commits it should be put to death regardless of extraneous factors related to his character. Quite apart from McGautha v. California, supra, I cannot agree. It is axiomatic that the major justification for concluding that a given defendant deserves to be punished is that he committed a crime. Even if the character of the accused Must be considered under the Eighth Amendment, surely a State is not constitutionally forbidden to provide that the commission of certain crimes conclusively establishes that the criminal's character is such that he deserves death. Moreover, quite apart from the character of a criminal, a State should constitutionally be able to conclude that the need to deter some crimes and that the likelihood that the death penalty will succeed in deterring these crimes is such that the death penalty may be made mandatory for all people who commit them. Nothing resembling a reasoned basis for the rejection of these propositions is to be found in the plurality opinion.
80
The remaining reason offered for invalidating the Louisiana statute is also infirm. It is said that the Eighth Amendment forbids the legislature to require imposition of the death penalty when the elements of the specified crime have been proved to the satisfaction of the jury because historically the concept of the mandatory death sentence has been rejected by the community and departs so far from contemporary standards with respect to the imposition of capital punishment that it must be held unconstitutional.
81
Although the plurality seemingly makes an unlimited pronouncement, it actually stops short of invalidating any statute making death the required punishment for any crime whatsoever. Apparently there are some crimes for which the plurality in its infinite wisdom will permit the States to require the death sentence to be imposed without the additional procedures which its opinion seems to mandate. There have always been mandatory death penalties for at least some crimes, and the legislatures of at least two states have now again embraced this approach in order to serve what they deem to be their own penological goals.
82
Furthermore, Justices STEWART, POWELL, and STEVENS uphold the capital punishment statute of Texas, under which capital punishment is required if the defendant is found guilty of the crime charged and the jury answers two additional questions in the affirmative. Once that occurs, no discretion is left to the jury; death is mandatory. Although Louisiana juries are not required to answer these precise questions, the Texas law is not constitutionally distinguishable from the Louisiana system under which the jury, to convict, must find the elements of the crime, including the essential element of intent to kill or inflict great bodily harm, which, according to the instructions given in this case, must be felonious, "that is, it must be wrong or without any just cause or excuse."
83
As the plurality now interprets the Eighth Amendment, the Louisiana and North Carolina statutes are infirm because the jury is deprived of all discretion once it finds the defendant guilty. Yet in the next breath it invalidates these statutes because they are said to invite or allow too much discretion: Despite their instructions, when they feel that defendants do not deserve to die, juries will so often and systematically disobey their instructns and find the defendant not guilty or guilty of a noncapital offense that the statute fails to satisfy the standards of Furman v. Georgia. If it is truly the case that Louisiana juries will exercise Too much discretion and I do not agree that it is then it seems strange indeed that the statute is also invalidated because it purports to give the jury too little discretion by making the death penalty mandatory. Furthermore, if there is danger of freakish and too infrequent imposition of capital punishment under a mandatory system such as Louisiana's, there is very little ground for believing that juries will be any more faithful to their instructions under the Georgia and Florida systems where the opportunity is much, much greater for juries to practice their own brand of unbridled discretion.
84
In any event the plurality overreads the history upon which it so heavily relies. Narrowing the categories of crime for which the death penalty was authorized reflected a growing sentiment that death was an excessive penalty for many crimes, but I am not convinced, as apparently the plurality is, that the decision to vest discretionary sentencing power in the jury was a judgment that mandatory punishments were excessively cruel rather than merely a legislative response to avoid jury nullifications which were occurring with some frequency. That legislatures chose jury sentencing as the least troublesome of two approaches hardly proves legislative rejection of mandatory sentencing. State legislatures may have preferred to vest discretionary sentencing power in a jury rather than to have guilty defendants go scot-free; but I doubt that these events necessarily reflect an affirmative legislative preference for discretionary systems or support an inference that legislatures would have chosen them even absent their experience with jury nullification.
85
Nor does the fact that juries at times refused to convict despite the evidence prove that the mandatory nature of the sentence was the burr under the jury's saddle rather than that one or more persons on those juries were opposed in principle to the death penalty under whatever system it might be authorized or imposed. Surely if every nullifying jury had been interrogated at the time and had it been proved to everyone's satisfaction that all or a large part of the nullifying verdicts occurred because certain members of these juries had been opposed to the death penalty in any form, rather than because the juries involved were reluctant to impose the death penalty on the particular defendants before them, it could not be concluded that either those juries or the country had condemned mandatory punishments as distinguished from the death penalty itself. The plurality nevertheless draws such an inference even though there is no more reason to infer that jury nullification occurred because of opposition to the death penalty in particular cases than because one or more of the 12 jurors on the critical juries were opposed to the death penalty in any form and stubbornly refused to participate in a guilty verdict. Of course, the plurality does not conclude that the death penalty was itself placed beyond legislative resuscitation either by jury nullification under mandatory statutes or by the erosion of the death penalty under the discretionary-sentencing systems that led to the judgment in Furman v. Georgia. I see no more basis for arriving at a contrary conclusion with respect to the mandatory statutes.
86
Louisiana and North Carolina have returned to the mandatory capital punishment system for certain crimes8 Their legislatures have not deemed mandatory punishment, once the crime is proved, to be unacceptable; nor have their juries rejected it, for the death penalty has been imposed with some regularity. Perhaps we would prefer that these States had adopted a different system but the issue is not our individual preferences but the constitutionality of the mandatory systems chosen by these two States. I see no warrant under the Eighth Andment for refusing to uphold these statutes.
87
Indeed, the more fundamental objection than the plurality's muddled reasoning is that in Gregg v. Georgia, 428 U.S. 153, at 174-176, 96 S.Ct. 2909, at 2925-2927, 49 L.Ed.2d 859, it lectures us at length about the role and place of the judiciary and then proceeds to ignore its own advice, the net effect being to suggest that observers of this institution should pay more attention to what we do than what we say. The plurality claims that it has not forgotten what the past has taught about the limits of judicial review; but I fear that it has again surrendered to the temptation to make policy for and to attempt to govern the country through a misuse of the powers given this Court under the Constitution.
V
88
I conclude that § 14:30 of the Louisiana statutes imposing the death penalty for first-degree murder is not unconstitutional under the Eighth Amendment. I am not impressed with the argument that this result reduces the Amendment to little more than mild advice from the Framers to state legislators. Weems, Trop, and Furman bear witness to the contrary.
89
For the foregoing reasons, I dissent.
90
Mr. Justice BLACKMUN, dissenting.
91
I dissent for the reasons set forth in my dissent in Furman v. Georgia, 408 U.S. 238, 405-414, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and in the other dissenting opinions I joined in that case. Id., at 375, 414, and 465, 92 S.Ct. at 2796.
1
La.Rev.Stat.Ann. § 14:30 (1951). The felonies were aggravated arson, aggravated burglary, aggravated kidnaping, aggravated rape, armed robbery, and simple robbery.
2
La.Code Crim.Proc.Ann., Art. 814 (1967).
3
La.Rev.Stat.Ann. § 14:30 (1974):
"First degree murder
First degree murder is the killing of a human being:
"(1) When the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape or armed robbery; or
"(2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who was engaged in the performance of his lawful duties; or
"(3) Where the offender has a specific intent to kill or to inflict great bodily harm and has previously been convicted of an unrelated murder or is serving a life sentence; or
"(4) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; (or)
"(5) When the offender has specific intent to commit murder and has been offered or has received anything of value for committing the murder.
"For the purposes of Paragraph (2) herein, the term peace officer shall be defined and include any constable, sheriff, deputy sheriff, local or state policeman, game warden, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, district attorney, assistant district attorney or district attorneys' investigator.
"Whoever commits the crime of first degree murder shall be punished by death."
(In 1975, § 14:30(1) was amended to add the crime of aggravated burglary as a predicate felony for first-degree murder. La.Acts 1975, No. 327, § 1.)
Louisiana Rev.Stat.Ann. § 14:30.1 (1974) provides:
"Second degree murder
Second degree murder is the killing of a human being:
"(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
"(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill.
"Whoever commits the crime of second degree murder shall be imprisoned at hard labor for life and shall not be eligible for parole, probation or suspension of sentence for a period of twenty years."
(In 1975, § 14:30.1 was amended to increase the period of parole ineligibility from 20 to 40 years following a conviction for second-degree murder. La.Acts 1975, No. 380.)
4
See State v. Cooley, 260 La. 768, 257 So.2d 400 (1972).
5
Louisiana Code Crim.Proc.Ann., Art. 814 (1967), enumerated "guilty without capital punishment" as one of the responsive verdicts available in a murder case. Article 817 provided that the jury in a capital case could qualify its verdict of guilty with the phrase "without capital punishment."
6
La.Code Crim.Proc.Ann., Art. 817 (Supp.1975).
7
See La.Rev.Stat.Ann. § 14:30 (1974), set forth at n. 3, supra.
8
At least 27 jurisdictions first limited the scope of their capital homicide laws by dividing murder into degrees and then later made death sentences discretionary even in first-degree murder cases.
9
Only the third category of the Louisiana first-degree murder statute, covering intentional killing by a person serving a life sentence or by a person previously convicted of an unrelated murder, defines the capital crime at least in significant part in terms of the character or record of the individual offender. Although even this narrow category does not permit the jury to consider possible mitigating factors, a prisoner serving a life sentence presents a unique problem that may justify such a law. See Gregg v. Georgia, 428 U.S., at 186, 96 S.Ct., at 2931; Woodson v. North Carolina, 428 U.S., at 287 n. 7, 292-293 n. 25, 96 S.Ct., at 2983 n. 7, 2985 n. 25.
10
Louisiana juries are instructed to return a guilty verdict for the offense charged if warranted by the evidence and to consider lesser verdicts only if the evidence does not justify a conviction on the greater offense. See State v. Hill, 297 So.2d 660, 662 (La.1974); cf. State v. Selman, 300 So.2d 467, 471-473 (La.1974).
11
While it is likely that many juries will follow their instructions and consider only the question of guilt in reaching their verdict, it is only reasonable to assume, in light of past experience with mandatory death sentence statutes, that a significant number of juries will take into account the fact that the death sentence is an automatic consequence of any first-degree murder conviction in Louisiana. See Woodson v. North Carolina, 428 U.S., at 302-303, 96 S.Ct., at 2990-2991. Those juries that do consider sentencing consequences are given no guidance in deciding when the ultimate sanction of death is an appropriate punishment and will often be given little or no evidence concerning the personal characteristics and previous record of an individual defendant. Moreover, there is no judicial review to safeguard against capricious sentencing determinations. Indeed, there is no judicial review of the sufficiency of the evidence to support a conviction. See State v. Brumfield, 319 So.2d 402, 404 (La.1975); State v. Evans, 317 So.2d 168, 170 (La.1975); State v. Douglas, 278 So.2d 485, 491 (La.1973).
12
See La.Laws 1846, c. 139.
1
State v. Sinclair, 263 La. 377, 268 So.2d 514 (1972); State v. Poland, 263 La. 269, 268 So.2d 221 (1972); State v. Singleton, 263 La. 267, 268 So.2d 220 (1972); State v. Williams, 263 La. 284, 268 So.2d 227 (1972); State v. Square, 263 La. 291, 268 So.2d 229 (1972); State v. Douglas, 263 La. 294, 268 So.2d 231 (1972); State v. McAllister, 263 La. 296, 268 So.2d 231 (1972); State v. Strong, 263 La. 298, 268 So.2d 232 (1972); State v. Marks, 263 La. 355, 268 So.2d 253 (1972).
2
Section 14:30 of La.Rev.Stat.Ann. (1974 Supp.), which became effective July 2, 1973, provided:
"First degree murder is the killing of a human being:
"(1) When the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape or armed robbery; or
"(2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who was engaged in the performance of his lawful duties; or
"(3) Where the offender has a specific intent to kill or to inflict great bodily harm and has previously been convicted of an unrelated murder or is serving a life sentence; or
"(4) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person;
"(5) When the offender has specific intent to commit murder and has been offered or has received anything of value for committing the murder.
"For the purposes of paragraph (2) herein, the term peace officer shall be defined and include any constable, sheriff, deputy sheriff, local or state policeman, game warden, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, district attorney, assistant district attorney or district attorneys' investigator.
"Whoever commits the crime of first degree murder shall be punished by death.
"Amended by Acts 1973, No. 109, § 1."
Subsection (1) of the statute was amended in 1975 to include "aggravated burglary." La.Acts 1975, No. 327, § 1.
As petitioner here concedes, Louisiana's post-Furman legislation, Supra, "narrowed" "the range of cases in which the punishment of death Might be inflicted." Brief for Petitioner 31 (emphasis in original). Prior to the 1973 legislation, All murders were punishable by the death penalty. Section 14:30, La.Rev.Stat.Ann. (1951), which was applicable prior to Furman, provided:
"Murder is the killing of a human being,
"(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
"(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated rape, armed robbery, or simple robbery, even though he has no intent to kill.
"Whoever commits the crime of murder shall be punished by death."
In addition to murder, Louisiana prior to Furman provided for the death penalty in cases of aggravated rape (§ 14:42), aggravated kidnaping (§ 14:44), and treason (§ 14:113). Louisiana's post-Furman legislation reenacted the death penalty for aggravated rape (§ 14:42 (1975 Supp.) ), aggravated kidnaping (§ 14:44 (1974 Supp.) ), and treason (§ 14:113 (1974 Supp.) ). The constitutionality of these statutes is not before the Court.
3
"There are certain facts that must be proved by the State to your satisfaction and beyond a reasonable doubt before you can return a verdict of guilty in this case.
"First, the State must prove that a crime was committed and that it was committed within the Parish of Calcasieu.
"Second, the State must prove that the alleged crime was committed by Stanislaus Roberts, the person named in the indictment, and on trial in this case.
"Third, the State must prove that Richard G. Lowe, the person named in the indictment as having been killed, was in fact killed.
"Fourth, the State must prove that the killing occurred while the defendant was engaged in an armed robbery.
"Fifth, the State must prove that the killing occurred on or about the date alleged in the indictment, although I charge you that it is not necessary that the State prove the exact date alleged in the indictment.
"Sixth, the State must prove that the offense committed was murder.
"First degree murder is defined in LSA-R.S. 14:30 as follows:
" 'First degree murder is the killing of a human being:
" '(1) When the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape or armed robbery; . . . '
"The indictment in this case charged Stanislaus Roberts under the statute. The State then, under this indictment, must prove that the killing was unlawful and done with a specific intent to kill or to inflict great bodily harm and done when the accused was engaged in the perpetration of armed robbery.
"Armed robbery is defined in LSA-R.S. 14:64 as follows:
" 'Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.'
"Theft includes the taking of anything of value which belongs to another without his consent. An intent to deprive the other permanently of whatever may be the subject of the taking is essential.
"A 'dangerous weapon' is defined by the law of Louisiana as 'any
gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.'
"The test of a dangerous weapon is not whether the weapon is inherently dangerous, but whether it is dangerous 'in the manner used.' Whether a dangerous weapon was used in this case is a question to be determined by the jury in considering: (1) whether a weapon was used; (2) the nature of a weapon if so used; (3) and the manner in which it may have been used; under the law and definition referred to above.
"An essential element of the crime of armed robbery is specific criminal intent, which is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.
"The requisite intent may be established by direct or positive evidence, or it may be inferred from the acts or conduct of the defendant or from other facts or circumstances surrounding the alleged commission of the offense. You may consider the acts or conduct of the defendant prior to, at the time of, or after the alleged offense, as well as all other facts by which you might ascertain whether the accused intended to commit the offense charged.
"To constitute the crime of first degree murder, the offender must have a specific intent to kill or inflict great bodily harm, and this 'specific intent' must actually exist in the mind of the offender at the time of the killing. If a human being is killed, when the offender is charged under this statute, but at the time of the killing, the offender did not have a specific intent to kill or inflict great bodily harm, then, the killing could not be murder in the first degree, although it might be murder in the second degree, manslaughter, justifiable homicide or an accident. The specific intent to kill or to inflict great bodily harm not only must exist at the time of the killing, but it must also be felonious, that is, it must be wrong or without any just cause or excuse.
"I charge you that it is not necessary that this specific intent should have existed in the mind of the offender for any particular length of time before the killing in order to constitute the crime of murder. If the will accompanies the act, that is, if the specific
intent to kill or to inflict great bodily (harm) actually exists in the mind of the offender at the moment of the killing, even though this specific intent was formed only a moment prior to the act itself which causes death, it would be as completely sufficient to make the act murder as if the intent had been formed on the previous day, an hour earlier, or any other time."
4
Mr. Justice Marshall wrote that the death penalty was invalid for several independent reasons, one of which was that "it is morally unacceptable to the people of the United States at this time in our history." 408 U.S., at 360, 92 S.Ct., at 2788. That capital punishment "has been almost totally rejected by contemporary society," Id., at 295, 92 S.Ct., at 2755, was one of four factors which together led Mr. Justice Brennan to invalidate the statute before us in Furman v. Georgia.
5
The statutes are summarized in the Appendix to petitioner's brief in No. 73-7031, Fowler v. North Carolina, cert. granted, 419 U.S. 963, 95 S.Ct. 223, 42 L.Ed.2d 177 (1974), and in Appendix A to the petitioner's brief in No. 75-5394, Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 decided this day. The various types of post-Furman statutes which have been enacted are described and analyzed in the Note, Discretion and the Constitutionality of the New Death Penalty Statutes, 87 Harv.L.Rev. 1690 (1974).
Following the invalidation of the death penalty in California by the California Supreme Court on state constitutional grounds in People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972), the State Constitution was amended by initiative and referendum to reinstate the penalty (with approximately two-thirds of those voting approving the measure). Cal.Const., Art. I, § 27 (effective Nov. 7, 1972). Approximately 64% Of the voters at the 1968 Massachusetts general election voted "yes" to a referendum asking "Shall the commonwealth of Massachusetts retain the death penalty for crime?" See Commonwealth v. O'Neal, Mass., 339 N.E.2d 676, 708 (1975) (Reardon, J., dissenting). For other state referenda approving capital punishment, see Furman v. Georgia, 408 U.S., at 437-439, 92 S.Ct., at 2827 (Powell, J., dissenting): Oregon (1964), Colorado (1966), Illinois (1970).
There have also been public opinion polls on capital punishment, see, E. g., S.Rep. No. 93-721, pp. 13-14 (1974), but their validity and reliability have been strongly criticized, see, E. g., Vidmar & Ellsworth, Public Opinion and the Death Penalty, 26 Stan.L.Rev. 1245 (1974), and indeed neither the parties here nor Amici rely on such polls as relevant to the issue before us. Brief for United States as Amicus Curiae 54.
6
As shown by Mr. Justice Powell's opinion in Furman v. Georgia, 408 U.S., at 442-443, n. 37, 92 S.Ct., at 2830, state death penalty statutes withstood constitutional challenge in the highest courts of 25 States. Post-Furman legislation has been widely challenged but has been sustained as not contrary to the Eighth and Fourteenth Amendments in the five States now before us and in Oklahoma (E. g., Davis v. State, 542 P.2d 532 (1975)). Final resolutions of cases in many other States is apparently awaiting our decision in the cases decided today. But see Commonwealth v. O'Neal, Supra, and People ex rel. Rice v. Cunningham, 61 Ill.2d 353, 336 N.E.2d 1 (1975), invalidating the death penalty on state-law grounds.
7
The debate over the general deterrent effect of the death penalty and the relevant materials were canvassed exhaustively by Mr. Justice Marshall in his separate concurring opinion in Furman, supra, 408 U.S., at 345-354, 92 S.Ct., at 2780. The debate has intensified since then. See Part III of Brief for Petitioner in No. 73-7301, Fowler v. North Carolina, supra (esp. pp. 121-130, and App. E, pp. 1e-10e), incorporated by reference in petitioner's brief in this case. See also Brief for United States as Amicus Curiae 34-35 in this and related cases. The focal point of the most recent stage of the debate has been Prof. Isaac Ehrlich's study of the issue. Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 Am.Econ.Rev. 397 (June 1975). For reactions to and comments on the Ehrlich study, see Statistical Evidence on the Deterrent Effect of Capital Punishment, 85 Yale L.J. 164-227 (1975). See also Passell, The Deterrent Effect of the Death Penalty: A Statistical Test, 28 Stan.L.Rev. 61 (1975).
For analysis of some of the reasons for the inclusive nature of statistical studies on the issue, see, E. g., Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, PP 62-67 (1953); Gibbs, Crime, Punishment, and Deterrence, 48 Sw.Soc.Sci.Q. 515 (1968); H. L. A. Hart, Murder and the Principles of Punishment: England and the United States, 52 Nw.U.L.Rev. 433, 457-458 (1957). See also Posner, The Economic Approach to Law, 53 Tex.L.Rev. 757, 766-768 (1975).
For a study of the deterrent effect of punishment generally, see F. Zimring & G. Hawkins, Deterrence (1973), and especially Id., at 16, 18-19, 31, 62-64, 186-190 (for a general discussion of capital punishment as a deterrent).
8
It is unclear to me why, because legislatures found shortcomings in their mandatory statutes and decided to try vesting absolute discretion in juries, the legislatures are constitutionally forbidden to return to mandatory statutes when shortcomings are discovered in their discretionary statutes. See Furman v. Georgia. Florida has in effect at the present time a statute under which the death penalty is mandatory whenever the sentencing judge finds that statutory aggravating factors outweigh the mitigating factors. Georgia has in effect a statute which gives the sentencer discretion in every case to decline to impose the death penalty. If Florida and all other states like it choose to adopt the Georgia statutory scheme, will the Eighth Amendment prevent them from later changing their minds and returning to their present scheme? I would think not.
Most of the states had in effect prior to Furman v. Georgia statutes under which even the least culpable first-degree murderer could be put to death. I simply cannot find from the decision to adopt such statutes a constitutional rule preventing the States from removing the standardless nature of sentencing under such statutes and replacing them with statutes under which all or a substantial portion of first-degree murderers are put to death.
This is particularly true in Louisiana. The most that the plurality can possibly infer from its own description of the history of capital punishment in this country is that the legislatures have rejected the proposition that All first-degree murderers should be put to death. This is so because the only mandatory statutes which were historically repealed or replaced were those which made death the mandatory punishment for All first-degree murders. Louisiana has now passed a statute which makes death the mandatory penalty for only five narrow categories of first-degree murder, not for all first-degree murders by any means. The history relied upon by the plurality is utterly silent on society's reaction to such a statute. It cannot be invalidated on the basis of contemporary standards because we do not know that it is inconsistent with such standards.
| 01
|
428 U.S. 280
96 S.Ct. 2978
49 L.Ed.2d 944
James Tyrone WOODSON and Luby Waxton, Petitioners,v.State of NORTH CAROLINA.
No. 75-5491.
Argued March 31, 1976.
Decided July 2, 1976.
Syllabus
Following this Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, the North Carolina law that previously had provided that in cases of first-degree murder the jury in its unbridled discretion could choose whether the convicted defendant should be sentenced to death or life imprisonment was changed to make the death penalty mandatory for that crime. Petitioners, whose convictions of first-degree murder and whose death sentences under the new statute were upheld by the Supreme Court of North Carolina, have challenged the statute's constitutionality. Held : The judgment is reversed insofar as it upheld the death sentences, and the case is remanded. Pp. 285-305; 305-306; 306.
287 N.C. 578, 215 S.E.2d 607, reversed and remanded.
Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS concluded that North Carolina's mandatory death sentence statute violates the Eighth and Fourteenth Amendments. Pp. 285-305.
1
(a) The Eighth Amendment serves to assure that the State's power to punish is "exercised within the limits of civilized standards," Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 597, 2 L.Ed.2d 630 (plurality opinion), and central to the application of the Amendment is a determination of contemporary standards regarding the infliction of punishment, Gregg v. Georgia, 428 U.S. 153, 176-182, 96 S.Ct. 2909, 2926-2929, 49 L.Ed.2d 859. Pp. 288.
2
(b) Though at the time the Eighth Amendment was adopted, all the States provided mandatory death sentences for specified offenses, the reaction of jurors and legislators to the harshness of those provisions has led to the replacement of automatic death penalty statutes with discretionary jury sentencing. The two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society jury determinations and legislative enactments conclusively point to the repudiation of automatic death sentences. "The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender," Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337. North Carolina's mandatory death penalty statute for first-degree murder, which resulted from the state legislature's adoption of the State Supreme Court's analysis that Furman required the serance of the discretionary feature of the old law, is a constitutionally impermissible departure from contemporary standards respecting imposition of the unique and irretrievable punishment of death. Pp. 289-301.
3
(c) The North Carolina statute fails to provide a constitutionally tolerable response to Furman's rejection of unbridled jury discretion in the imposition of capital sentences. Central to the limited holding in that case was the conviction that vesting a jury with standardless sentencing power violated the Eighth and Fourteenth Amendments, yet that constitutional deficiency is not eliminated by the mere formal removal of all sentencing power from juries in capital cases. In view of the historic record, it may reasonably be assumed that many juries under mandatory statutes will continue to consider the grave consequences of a conviction in reaching a verdict. But the North Carolina statute provides no standards to guide the jury in determining which murderers shall live and which shall die. Pp. 302-303.
4
(d) The respect for human dignity underlying the Eighth Amendment, Trop v. Dulles, supra, 356 U.S. at 100, 78 S.Ct. at 597 (plurality opinion), requires consideration of aspects of the character of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of imposing the ultimate punishment of death. The North Carolina statute impermissibly treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty. Pp. 303-305.
5
Mr. Justice BRENNAN concurred in the judgment for the reasons stated in his dissenting opinion in Gregg v. Georgia, 428 U.S., at 227, 96 S.Ct., at 2791. P. 305.
6
Mr. Justice MARSHALL, being of the view that death is a cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, concurred in the judgment. Gregg v. Georgia, 428 U.S., at 231, 96 S.Ct., at 2973 (Marshall, J., dissenting). P. 306.
7
Anthony G. Amsterdam, Stanford, Cal., for petitioners.
8
Sidney S. Eagles, Jr., Raleigh, N. C., for respondent.
9
William E. James, Los Angeles, Cal., argued for the State of California, as amicus curiae.
10
Sol. Gen. Robert H. Bork, Washington, D. C., argued for the United States, as amicus curiae.
11
Judgment of the Court, and opinion of Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS, announced by Mr. Justice STEWART.
12
The question in this case is whether the imposition of a death sentence for the crime of first-degree murder under the law of North Carolina violates the Eighth and Fourteenth Amendments.
13
* The petitioners were convicted of first-degree murder as the result of their participation in an armed robbery of a convenience food store, in the course of which the cashier was killed and a customer was seriously wounded. Tre were four participants in the robbery: the petitioners James Tyrone Woodson and Luby Waxton and two others, Leonard Tucker and Johnnie Lee Carroll. At the petitioners' trial Tucker and Carroll testified for the prosecution after having been permitted to plead guilty to lesser offenses; the petitioners testified in their own defense.
14
The evidence for the prosecution established that the four men had been discussing a possible robbery for some time. On the fatal day Woodson had been drinking heavily. About 9:30 p. m., Waxton and Tucker came to the trailer where Woodson was staying. When Woodson came out of the trailer, Waxton struck him in the face and threatened to kill him in an effort to make him sober up and come along on the robbery. The three proceeded to Waxton's trailer where they met Carroll. Waxton armed himself with a nickel-plated derringer, and Tucker handed Woodson a rifle. The four then set out by automobile to rob the store. Upon arriving at their destination Tucker and Waxton went into the store while Carroll and Woodson remained in the car as lookouts. Once inside the store, Tucker purchased a package of cigarettes from the woman cashier. Waxton then also asked for a package of cigarettes, but as the cashier approached him he pulled the derringer out of his hip pocket and fatally shot her at point-blank range. Waxton then took the money tray from the cash register and gave it to Tucker, who carried it out of the store, pushing past an entering customer as he reached the door. After he was outside, Tucker heard a second shot from inside the store, and shortly thereafter Waxton emerged, carrying a handful of paper money. Tucker and Waxton got in the car and the four drove away.
15
The petitioners' testimony agreed in large part with this version of the circumstances of the robbery. It differed diametrically in one important respect: Waxton claimed that he never had a gun, and that Tucker had shot both the cashier and the customer.
16
During the trial Waxton asked to be allowed to plead guilty to the same lesser offenses to which Tucker had pleaded guilty,1 but the solicitor refused to accept the pleas.2 Woodson, by contrast, maintained throughout the trial that he had been coerced by Waxton, that he was therefore innocent, and that he would not consider pleading guilty to any offense.
17
The petitioners were found guilty on all charges,3 and, as was required by statute, sentenced to death. The Supreme Court of North Carolina affirmed. 287 N.C. 578, 215 S.E.2d 607 (1975). We granted certiorari, 423 U.S. 1082, 96 S.Ct. 1090, 47 L.Ed.2d 94 (1976), to consider whether the imposition of the death penalties in this case comports with the Eighth and Fourteenth Amendments to the United States Constitution.
II
18
The petitioners argue that the imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. We reject this argument for the reasons stated today in Gregg v. Georgia, 428 U.S. 153, 168-187, 96 S.Ct. 2909, 2922-2932, 49 L.Ed.2d 859.
III
19
At the time of this Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), North Carolina law provided that in cases of first-degree murder, the jury in its unbridled discretion could choose whether the convicted defendant should be sentenced to death or to life imprisonment.4 After the Furman decision the Supreme Court of North Carolina in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973), held unconstitutional the provision of the death penalty statute that gave the jury the option of returning a verdict of guilty without capital punishment, but held further that this provision was severable so that the statute survived as a mandatory death penalty law.5
20
The North Carolina General Assembly in 1974 followed the court's lead and enacted a new statute that was essentially unchanged from the old one except that it made the death penalty mandatory. The statute now reads as follows:
21
"Murder in the first and second degree defined; punishment. A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death. All other kinds of murder shall be deemed murder in the second degree, and shall be punished by imprisonment for a term of not less than two years nor more than life imprisonment in the State's prison." N.C.Gen.Stat. § 14-17 (Cum.Supp.1975).
22
It was under this statute that the petitioners, who committed their crime on June 3, 1974, were tried, convicted, and sentenced to death.
23
North Carolina, unlike Florida, Georgia, and Texas, has thus responded to the Furman decision by making death the mandatory sentence for all persons convicted of first-degree murder.6 In ruling on the constitutionality of the sentences imposed on the petitioners under this North Carolina statute, the Court now addresses for the first time the question whether a death sentence returned pursuant to a law imposing a mandatory death penalty for a broad category of homicidal offenses7 constitutes cruel and unusual punishment within the meaning of the Eighth and Fourteenth Amendments.8 The issue, like that explored in Furman, involves the procedure employed by the State to select persons for the unique and irreversible penalty of death.9
24
* The Eighth Amendment stands to assure that the State's power to punish is "exercised within the limits of civilized standards." Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion). See Id., at 101, 78 S.Ct., at 598; Weems v. United States, 217 U.S. 349, 373, 378, 30 S.Ct. 544, 551, 553, 54 L.Ed. 793 (1910); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 468-469, 67 S.Ct. 374, 378-379, 91 L.Ed. 422 (1947) (Frankfurter, J., concurring);10 Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962); Furman v. Georgia, 408 U.S., at 242, 92 S.Ct., at 2728 (Douglas, J., concurring); Id., at 269-270, 92 S.Ct., at 2741-2742 (Brennan, J., concurring); Id., at 329, 92 S.Ct., at 2772 (Marshall, J., concurring); Id., at 382-383, 92 S.Ct., at 2800-2801 (Burger, C. J., dissenting); Id., at 409, 92 S.Ct., at 2814 (Blackmun, J., dissenting); Id., at 428-429, 92 S.Ct., at 2823-2824 (Powell, J., dissenting). Central to the application of the Amendment is a determination of contemporary standards regarding the infliction of punishment. As discussed in Gregg v. Georgia, 428 U.S., at 176-182, 96 S.Ct., at 2926-2929, indicia of societal values identified in prior opinions include history and traditional usage,11 legislative enactments,12 and jury determinations.13
25
In order to provide a frame for assessing the relevancy of these factors in this case we begin by sketching the history of mandatory death penalty statutes in the United States. At the time the Eighth Amendment was adopted in 1791, the States uniformly followed the common-law practice of making death the exclusive and mandatory sentence for certain specified offenses.14 Although the range of capital offenses in the American Colonies was quite limited in comparison to the more than 200 offenses then punishable by death in England,15 the Colonies at the time of the Revolution imposed death sentences on all persons convicted of any of a considerable number of crimes, typically including at a minimum, murder, treason, piracy, arson, rape, robbery, burglary, and sodomy.16 As at common law, all homicides that were not involuntary, provoked, justified, or excused constituted murder and were automatically punished by death.17 Almost from the outset jurors reacted unfavorably to the harshness of mandatory death sentences.18 The States initially responded to this expression of public dissatisfaction with mandatory statutes by limiting the classes of capital offenses.19
26
This reform, however, left unresolved the problem posed by the not infrequent refusal of juries to convict murderers rather than subject them to automatic death sentences. In 1794, Pennsylvania attempted to alleviate the undue severity of the law by confining the mandatory death penalty to "murder of the first degree" encompassing all "wilful, deliberate and premeditated" killings. Pa.Laws 1794, c. 1766.20 Other jurisdictions, including Virginia and Ohio, soon enacted similar measures, and within a generation the practice spread to most of the States.21
27
Despite the broad acceptance of the division of murder into degrees, the reform proved to be an unsatisfactory means of identifying persons appropriately punishable by death. Although its failure was due in part to the amorphous nature of the controlling concepts of willfulness, deliberateness, and premeditation,22 a more fundamental weakness of the reform soon became apparent. Juries continued to find the death penalty inappropriate in a significant number of first-degree murder cases and refused to return guilty verdicts for that crime23
28
The inadequacy of distinguishing between murderers solely on the basis of legislative criteria narrowing the definition of the capital offense led the States to grant juries sentencing discretion in capital cases. Tennessee in 1838, followed by Alabama in 1841, and Louisiana in 1846, were the first States to abandon mandatory death sentences in favor of discretionary death penalty statutes.24 This flexibility remedied the harshness of mandatory statutes by permitting the jury to respond to mitigating factors by withholding the death penalty. By the turn of the century, 23 States and the Federal Government had made death sentences discretionary for first-degree murder and other capital offenses. During the next two decades 14 additional States replaced their mandatory death penalty statutes. Thus, by the end of World War I, all but eight States, Hawaii, and the District of Columbia either had adopted discretionary death penalty schemes or abolished the death penalty altogether. By 1963, all of these remaining jurisdictions had replaced their automatic death penalty statutes with discretionary jury sentencing.25
29
The history of mandatory death penalty statutes in the United States thus reveals that the practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unworkably rigid. The two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society jury determinations and legislative enactments both point conclusively to the repudiation of automatic death sentences. At least since the Revolution, American jurors have, with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict. As we have seen, the initial movement to reduce the number of capital offenses and to separate murder into degrees was prompted in part by the reaction of jurors as well as by reformers who objected to the imposition of death as the penalty for any crime. Nineteenth century journalists, statesmen, and jurists repeatedly observed that jurors were often deterred from convicting palpably guilty men of first-degree murder under mandatory statutes.26 Thereafter, continuing evidence of jury reluctance to convict persons of capital offenses in mandatory death penalty jurisdictions resulted in legislative authorization of discretionary jury sentencing by Congress for federal crimes in 1897,27 by North Carolina in 1949,28 and by Congress for the District of Columbia in 1962.29
30
As we have noted today in Gregg v. Georgia, ante, 428 U.S., at 179-181, 96 S.Ct., at 2928-2929, legislative measures adopted by the people's chosen representatives weigh heavily in ascertaining contemporary standards of decency. The consistent course charted by the state legislatures and by Congress since the middle of the past century demonstrates that the aversion of jurors to mandatory death penalty statutes is shared by society at large.30
31
Still further evidence of the incompatibility of mandatory death penalties with contemporary values is provided by the results of jury sentencing under discretionary statutes. In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the Court observed that "one of the most important functions any jury can perform" in exercising its discretion to choose "between life imprisonment and capital punishment" is "to maintain a link between contemporary community values and the penal system." Id., at 519, and n. 15, 88 S.Ct., at 1775. Various studies indicate that even in first-degree murder cases juries with sentencing discretion do not impose the death penalty "with any great frequency." H. Kalven & H. Zeisel, The American Jury 436 (1966).31 The actions of sentencing juries suggest that under contemporary standardsf decency death is viewed as an inappropriate punishment for a substantial portion of convicted first-degree murderers.
32
Although the Court has never ruled on the constitutionality of mandatory death penalty statutes, on several occasions dating back to 1899 it has commented upon our society's aversion to automatic death sentences. In Winston v. United States, 172 U.S. 303, 19 S.Ct. 212, 43 L.Ed. 456 (1899), the Court noted that the "hardship of punishing with death every crime coming within the definition of murder at common law, and the reluctance of jurors to concur in a capital conviction, have induced American legislatures, in modern times, to allow some cases of murder to be punished by imprisonment, instead of by death." Id., at 310, 19 S.Ct., at 214.32 Fifty years after Winston, the Court underscored the marked transformation in our attitudes toward mandatory sentences: "The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. This whole country has traveled far from the period in which the death sentence was an automatic and commonplace sult of convictions . . . ." Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949).
33
More recently, the Court in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), detailed the evolution of discretionary imposition of death sentences in this country, prompted by what it termed the American "rebellion against the common-law rule imposing a mandatory death sentence on all convicted murderers." Id., at 198, 91 S.Ct., at 1462. See Id., at 198-202, 91 S.Ct., at 1462-1465. Perhaps the one important factor about evolving social values regarding capital punishment upon which the Members of the Furman Court agreed was the accuracy of McGautha's assessment of our Nation's rejection of mandatory death sentences. See Furman v. Georgia, 408 U.S., at 245-246, 92 S.Ct., at 2729-2730 (Douglas, J., concurring); Id., at 297-298, 92 S.Ct., at 2756-2757 (Brennan, J., concurring); Id., at 339, 92 S.Ct., at 2777 (Marshall, J., concurring); Id., at 402-403, 92 S.Ct., at 2810-2811 (Burger, C. J., with whom Blackmun, Powell, and Rehnquist, JJ., joined, dissenting); Id., at 413, 92 S.Ct., at 2815 (Blackmun, J., dissenting). Mr. Justice Blackmun, for example, emphasized that legislation requiring an automatic death sentence for specified crimes would be "regressive and of an antique mold" and would mark a return to a "point in our criminology (passed beyond) long ago." Ibid. The Chief Justice, speaking for the four dissenting Justices in Furman, discussed the question of mandatory death sentences at some length:
34
"I had thought that nothing was clearer in history, as we noted in McGautha one year ago, than the American abhorrence of 'the common-law rule imposing a mandatory death sentence on all convicted murderers.' 402 U.S., at 198, 91 S.Ct., at 1462. As the concurring opinion of Mr. Justice Marshall shows, (408 U.S.,) at (339, 92 S.Ct. at) 2777, the 19th century movement away from mandatory death sentences marked an enlightened introduction of flexibility into the sentencing process. It recognized that individual culpability is not always measured by the category of the ime committed. This change in sentencing practice was greeted by the Court as a humanizing development. See Winston v. United States, 172 U.S. 303, 19 S.Ct. 212, 43 L.Ed. 456 (1899); cf. Calton v. Utah, 130 U.S. 83, 9 S.Ct. 435, 32 L.Ed. 870 (1889). See also Andres v. United States, 333 U.S. 740, 753, 68 S.Ct. 880, 886, 92 L.Ed. 1055 (1948) (Frankfurter, J., concurring)." Id., at 402, 92 S.Ct., at 2810.
35
Although it seems beyond dispute that, at the time of the Furman decision in 1972, mandatory death penalty statutes had been renounced by American juries and legislatures, there remains the question whether the mandatory statutes adopted by North Carolina and a number of other States following Furman evince a sudden reversal of societal values regarding the imposition of capital punishment. In view of the persistent and unswerving legislative rejection of mandatory death penalty statutes beginning in 1838 and continuing for more than 130 years until Furman,33 it seems evident that the post-Furman enactments reflect attempts by the States to retain the death penalty in a form consistent with the Constitution, rather than a renewed societal acceptance of mandatory death sentencing.34 The fact that some States have adopted ndatory measures following Furman while others have legislated standards to guide jury discretion appears attributable to diverse readings of this Court's multi-opinioned decision in that case.35
36
A brief examination of the background of the current North Carolina statute serves to reaffirm our assessment of its limited utility as an indicator of contemporary values regarding mandatory death sentences. Before 1949, North Carolina imposed a mandatory death sentence on any person convicted of rape or first-degree murder. That year, a study commission created by the state legislature recommended that juries be granted discretion to recommend life sentences in all capital cases:
37
"We propose that a recommendation of mercy by the jury in capital cases automatically carry with it a life sentence. Only three other states now have the mandatory death penalty and we believe its retention will be definitely harmful. Quite frequently, juries refuse to convict for rape or first degree murder because, from all the circumstances, they do not believe the defendant, although guilty, should suffer death. The result is that verdicts are returned hardly in harmony with evidence. Our proposal is already in effect in respect to the crimes of burglary and arson. There is much testimony that it has proved beneficial in such cases. We think the law can now be broadened to include all capital crimes." Report of the Special Commission For the Improvement of the Administration of Justice, North Carolina, Popular Government 13 (Jan.1949).
38
The 1949 session of the General Assembly of North Carolina adopted the proposed modifications of its rape and murder statutes. Although in subsequent years numerous bills were introduced in the legislature to limit further or abolish the death penalty in North Carolina, they were rejected as were two 1969 proposals to return to mandatory death sentences for all capital offenses. See State v. Waddell, 282 N.C., at 441, 194 S.E.2d, at 26 (opinion of the court); Id., at 456-457, 194 S.E.2d, at 32-33 (Bobbitt, C. J., concurring in part and dissenting in part).
39
As noted, Supra, at 285-286, when the Supreme Court of North Carolina analyzed the constitutionality of the State's death penalty statute following this Court's decision in Furman, it severed the 1949 proviso authorizing jury sentencing discretion and held that "the remainder of the statute with death as the mandatory punishment . . . remains in full force and effect." State v. Waddell, supra, at 444-445, 194 S.E.2d, at 28. The North Carolina General Assembly then followed the course found constitutional in Waddell and enacted a first-degree murder provision identical to the mandatory statute in operation prior to the authorization of jury discretion. The State's brief in this case relates that the legislature sought to remove "All sentencing discretion (so that) there could be no successful Furman based attack on the North Carolina statute." It is now well established that the Eighth Amendment draws much of its meaning from "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S., at 101, 78 S.Ct., at 598 (plurality opinion). As the above discussion makes clear, one of the most significant developments in our society's treatment of capital punishment has been the rejection of the common-law practice of inexorably imposing a death sentence upon every person convicted of a specified offense. North Carolina's mandatory death penalty statute for first-degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the Eighth and Fourteenth Amendments' requirement that the State's power to punish "be exercised within the limits of civilized standards." Id., at 100, 78 S.Ct., at 598.36
B
40
A separate deficiency of North Carolina's mandatory death sentence statute is its failure to provide a constitutionally tolerable response to Furman's rejection of unbridled jury discretion in the imposition of capital sentences. Central to the limited holding in Furman was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments. See Furman v. Georgia, 408 U.S., at 309-310, 92 S.Ct., at 2762-2763 (Stewart, J., concurring); Id., at 313, 92 S.Ct., at 2764 (White, J., concurring); cf. Id., at 253-257, 92 S.Ct., at 2733-2736 (Douglas, J., concurring). See also Id., at 398-399, 92 S.Ct., at 2808-2809 (Burger, C. J., dissenting). It is argued that North Carolina has remedied the inadequacies of the death penalty statutes held unconstitutional in Furman by withdrawing all sentencing discretion from juries in capital cases. But when one considers the long and consistent American experience with the death penalty in first-degree murder cases, it becomes evident that mandatory statutes enacted in response to Furman have simply papered over the problem of unguided and unchecked jury discretion.
41
As we have noted in Part III-A, Supra, there is general agreement that American juries have persistently refused to convict a significant portion of persons charged with first-degree murder of that offense under mandatory death penalty statutes. The North Carolina study commission, Supra, at 299-300, reported that juries in that State "(q)uite frequently" were deterred from rendering guilty verdicts of first-degree murder because of the enormity of the sentence automatically imposed. Moreover, as a matter of historic fact, juries operating under discretionary sentencing statutes have consistently returned death sentences in only a minority of first-degree murder cases.37 In view of the historic record, it is only reasonable to assume that many juries under mandatory statutes will continue to consider the grave consequences of a conviction in reaching a verdict. North Carolina's mandatory death penalty statute provides no standards to guide the jury in its inevitable exercise of the power to determine which first-degree murderers shall live and which shall die. And there is no way under the North Carolina law for the judiciary to check arbitrary and capricious exercise of that power through a review of death sentences.38 Instead of rationalizing the sentencing process, a mandatory scheme may well exacerbate the problem identified in Furman by resting the penalty determination on the particular jury's willingness to act lawlessly. While a mandatory death penalty statute may reasonably be expected to increase the number of persons sentenced to death, it does not fulfill Furman's basic requirement by replacing arbitrary and wanton jury discretion with objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death.
C
42
A third constitutional shortcoming of the North Carolina statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death. In Furman, members of the Court acknowledge what cannot fairly be denied that death is a punishment different from all other sanctions in kind rather than degree. See 408 U.S., at 286-291, 92 S.Ct., at 2750-2753 (Brennan, J., concurring);Id., at 306, 92 S.Ct., at 2760 (Stewart, J., concurring). A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.
43
This Court has previously recognized that "(f)or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43 (1937). Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See Williams v. New York, 337 U.S., at 247-249, 69 S.Ct., at 1083-1084; Furman v. Georgia, 408 U.S., at 402-403, 92 S.Ct., at 2810-2811 (Burger, C. J., dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S., at 100, 78 S.Ct., at 597 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
44
This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.39
45
For the reasons stated, we conclude that the death sentences imposed upon the petitioners under North Carolina's mandatory death sentence statute violated the Eighth and Fourteenth Amendments and therefore must be set aside.40 The judgment of the Supreme Court of North Carolina is reversed insofar as it upheld the death sentences imposed upon the petitioners, and the case is remanded for further proceedings not inconsistent with this opinion.
46
It is so ordered.
47
Mr. Justice BRENNAN, concurring in the judgment.
48
For the reasons stated in my dissenting opinion in Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2971, 49 L.Ed.2d 859, I concur in the judgment that sets aside the death sentences imposed under the North Carolina death senten statute as violative of the Eighth and Fourteenth Amendments.
49
Mr. Justice MARSHALL, concurring in the judgment.
50
For the reasons stated in my dissenting opinion in Gregg v. Georgia, 428 U.S. 153, 231, 96 S.Ct. 2909, 2973, 49 L.Ed.2d 859, I am of the view that the death penalty is a cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. I therefore concur in the Court's judgment.
51
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
52
Following Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the North Carolina Supreme Court considered the effect of that case on the North Carolina criminal statutes which imposed the death penalty for first-degree murder and other crimes but which provided that "if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury." State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973), determined that Furman v. Georgia invalidated only the proviso giving the jury the power to limit the penalty to life imprisonment and that thenceforward death was the mandatory penalty for the specified capital crimes. Thereafter N.C.Gen.Stat. § 14-17 was amended to eliminate the express dispensing power of the jury and to add kidnaping to the underlying felonies for which death is the specified penalty. As amended in 1974, the section reads as follows:
53
"A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death. All other kis of murder shall be deemed murder in the second degree, and shall be punished by imprisonment for a term of not less than two years nor more than life imprisonment in the State's prison."
54
It was under this statute that the petitioners in this case were convicted of first-degree murder and the mandatory death sentences imposed.
55
The facts of record and the proceedings in this case leading to petitioners' convictions for first-degree murder and their death sentences appear in the opinion of Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS. The issues in the case are very similar, if not identical, to those in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974. For the reasons stated in my dissenting opinion in that case, I reject petitioners' arguments that the death penalty in any circumstances is a violation of the Eighth Amendment and that the North Carolina statute, although making the imposition of the death penalty mandatory upon proof of guilt and a verdict of first-degree murder, will nevertheless result in the death penalty being imposed so seldom and arbitrarily that it is void under Furman v. Georgia. As is also apparent from my dissenting opinion in Roberts v. Louisiana, I also disagree with the two additional grounds which the plurality Sua sponte offers for invalidating the North Carolina statute. I would affirm the judgment of the North Carolina Supreme Court.
56
Mr. Justice BLACKMUN, dissenting.
57
I dissent for the reasons set forth in my dissent in Furman v. Georgia, 408 U.S. 238, 405-414, 92 S.Ct. 2726, 2811-2817, 33 L.Ed.2d 346 (1972) and in the other dissenting opinions I joined in that case. Id., at 375, 4, and 465, 92 S.Ct., at 2796, 2816 and 2841.
58
Mr. Justice REHNQUIST, dissenting.
59
* The difficulties which attend the plurality's explanation for the result it reaches tend at first to obscure difficulties at least as significant which inhere in the unarticulated premises necessarily underlying that explanation. I advert to the latter only briefly, in order to devote the major and following portion of this dissent to those issues which the plurality actually considers.
60
As an original proposition, it is by no means clear that the prohibition against cruel and unusual punishments embodied in the Eighth Amendment, and made applicable to the States by the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), was not limited to those punishments deemed cruel and unusual at the time of the adoption of the Bill of Rights. McGautha v. California, 402 U.S. 183, 225, 91 S.Ct. 1454, 1476, 28 L.Ed.2d 711 (1971) (opinion of Black, J.). If Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), dealing not with the Eighth Amendment but with an identical provision contained in the Philippine Constitution, and the plurality opinion in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), are to be taken as indicating the contrary, they should surely be weighed against statements in cases such as Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879); In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947), and the plurality opinion in Trop itself, that the infliction of capital punishment is not in itself violative of the Cruel and Unusual Punishments Clause. Thus for the plurality to begin its analysis with the assumption that it need only demonstrate that "evolving standards of decency" show that contemporary "society" has rejected such provisions is itself a somewhat shaky point of departure. But even if the assumption be conceded, the plurality opinion's analysis nonetheless founders.
61
The plurality relies first upon its conclusion that society has turned away from the mandatory imposition of death sentences, and second upon its conclusion that the North Carolina system has "simply papered over" the problem of unbridled jury discretion which two of the separate opinions in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), identified as the basis for the judgment rendering the death sentences there reviewed unconstitutional. The third "constitutional shortcoming" of the North Carolina statute is said to be "its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death." Ante, at 303.
62
I do not believe that any one of these reasons singly, or all of them together, can withstand careful analysis. Contrary to the plurality's assertions, they would import into the Cruel and Unusual Punishments Clause procedural requirements which find no support in our cases. Their application will result in the invalidation of a death sentence imposed upon a defendant convicted of first-degree murder under the North Carolina system, and the upholding of the same sentence imposed on an identical defendant convicted on identical evidence of first-degree murder under the Florida, Georgia, or Texas systems a result surely as "freakish" as that condemned in the separate opinions in Furman.
II
63
The plurality is simply mistaken in its assertion that "(t)he history of mandatory death penalty statutes in the United States thus reveals that the practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unworkably rigid." Ante, at 292-293. This conclusion is purported based on two historic developments: the first a series of legislative decisions during the 19th century narrowing the class of offenses punishable by death; the second a series of legislative decisions during both the 19th and 20th centuries, through which mandatory imposition of the death penalty largely gave way to jury discretion in deciding whether or not to impose this ultimate sanction. The first development may have some relevance to the plurality's argument in general but has no bearing at all upon this case. The second development, properly analyzed, has virtually no relevance even to the plurality's argument.
64
There can be no question that the legislative and other materials discussed in the plurality's opinion show a widespread conclusion on the part of state legislatures during the 19th century that the penalty of death was being required for too broad a range of crimes, and that these legislatures proceeded to narrow the range of crimes for which such penalty could be imposed. If this case involved the imposition of the death penalty for an offense such as burglary or sodomy, see Ante, at 289, the virtually unanimous trend in the legislatures of the States to exclude such offenders from liability for capital punishment might bear on the plurality's Eighth Amendment argument. But petitioners were convicted of first-degree murder, and there is not the slightest suggestion in the material relied upon by the plurality that there had been any turning away at all, much less any such unanimous turning away, from the death penalty as a punishment for those guilty of first-degree murder. The legislative narrowing of the spectrum of capital crimes, therefore, while very arguably representing a general societal judgment since the trend was so widespread, simply never reached far enough to exclude the sort of aggravated homicide of which petitioners stand convicted.
65
The second string to the plurality's analytical bow is that legislative change from mandatory to discretionary imposition of the death sentence likewise evidences societal rejection of mandatory death penalties. The plurality simply does not make out this part of its case, however, in large part because it treats as being of equal dignity with legislative judgments the judgments of particular juries and of individual jurors.
66
There was undoubted dissatisfaction, from more than one sector of 19th century society, with the operation of mandatory death sentences. One segment of that society was totally opposed to capital punishment, and was apparently willing to accept the substitution of discretionary imposition of that penalty for its mandatory imposition as a halfway house on the road to total abolition. Another segment was equally unhappy with the operation of the mandatory system, but for an entirely different reason. As the plurality recognizes, this second segment of society was unhappy with the operation of the mandatory system, not because of the death sentences imposed under it, but because people obviously guilty of criminal offenses were Not being convicted under it. See Ante, at 293. Change to a discretionary system was accepted by these persons not because they thought mandatory imposition of the death penalty was cruel and unusual, but because they thought that if jurors were permitted to return a sentence other than death upon the conviction of a capital crime, fewer guilty defendants would be acquitted. See McGautha, 402 U.S., at 199, 91 S.Ct., at 1463.
67
So far as the action of juries is concerned, the fact that in some cases juries operating under the mandatory system refused to convict obviously guilty defendants does not reflect any "turning away" from the death penalty, or the mandatory death penalty, supporting the proposition that it is "cruel and unusual." Given the requirement of unanimity with respect to jury verdicts in capital cases, a requirement which prevails today in States which accept a nonunanimous verdict in the case of other crimes, see Johnson v. Louisiana, 406 U.S 356, 363-364, 92 S.Ct. 1620, 1625-1626, 32 L.Ed.2d 152 (1972), it is apparent that a single juror could prevent a jury from returning a verdict of conviction. Occasional refusals to convict, therefore, may just as easily have represented the intransigence of only a small minority of 12 jurors as well as the unanimous judgment of all 12. The fact that the presence of such jurors could prevent conviction in a given case, even though the majority of society, speaking through legislatures, had decreed that it should be imposed, certainly does not indicate that society as a whole rejected mandatory punishment for such offenders; it does not even indicate that those few members of society who serve on juries, as a whole, had done so.
68
The introduction ofdiscretionary sentencing likewise creates no inference that contemporary society had rejected the mandatory system as unduly severe. Legislatures enacting discretionary sentencing statutes had no reason to think that there would not be roughly the same number of capital convictions under the new system as under the old. The same subjective juror responses which resulted in juror nullification under the old system were legitimized, but in the absence of those subjective responses to a particular set of facts, a capital sentence could as likely be anticipated under the discretionary system as under the mandatory. And at least some of those who would have been acquitted under the mandatory system would be subjected to at least Some punishment under the discretionary system, rather than escaping altogether a penalty for the crime of which they were guilty. That society was unwilling to accept the paradox presented to it by the actions of some maverick juries or jurors the acquittal of palpably guilty defendants hardly reflects the sort of an "evolving standard decency" to which the plurality professes obeisance.
69
Nor do the opinions in Furman which indicate a preference for discretionary sentencing in capital cases suggest in the slightest that a mandatory sentencing procedure would be cruel and unusual. The plurality concedes, as it must, that following Furman 10 States enacted laws providing for mandatory capital punishment. See State Capital Punishment Statutes Enacted Subsequent to Furman v. Georgia, Congressional Research Service Pamphlet 17-22 (June 19, 1974). These enactments the plurality seeks to explain as due to a wrongheaded reading of the holding in Furman. But this explanation simply does not wash. While those States may be presumed to have preferred their prior systems reposing sentencing discretion in juries or judges, they indisputably preferred mandatory capital punishment to no capital punishment at all. Their willingness to enact statutes providing that penalty is utterly inconsistent with the notion that they regarded mandatory capital sentencing as beyond "evolving standards of decency." The plurality's glib rejection of These legislative decisions as having little weight on the scale which it finds in the Eighth Amendment seems to me more an instance of its desire to save the people from themselves than a conscientious effort to ascertain the content of any "evolving standard of decency."
III
70
The second constitutional flaw which the plurality finds in North Carolina's mandatory system is that it has simply "papered over" the problem of unchecked jury discretion. The plurality states, ante, at 302, that "there is general agreement that American juries have persistently refused to convict a significa portion of persons charged with first-degree murder of that offense under mandatory death penalty statutes." The plurality also states, Ante, at 303, that "as a matter of historic fact, juries operating under discretionary sentencing statutes have consistently returned death sentences in only a minority of first-degree murder cases." The basic factual assumption of the plurality seems to be that for any given number of first-degree murder defendants subject to capital punishment, there will be a certain number of jurors who will be unwilling to impose the death penalty even though they are entirely satisfied that the necessary elements of the substantive offense are made out.
71
In North Carolina jurors unwilling to impose the death penalty may simply hang a jury or they may so assert themselves that a verdict of not guilty is brought in; in Louisiana they will have a similar effect in causing some juries to bring in a verdict of guilty of a lesser included offense even though all the jurors are satisfied that the elements of the greater offense are made out. Such jurors, of course, are violating their oath, but such violation is not only consistent with the majority's hypothesis; the majority's hypothesis is bottomed on its occurrence.
72
For purposes of argument, I accept the plurality's hypothesis; but it seems to me impossible to conclude from it that a mandatory death sentence statute such as North Carolina enacted is any less sound constitutionally than are the systems enacted by Georgia, Florida, and Texas which the Court upholds.
73
In Georgia juries are entitled to return a sentence of life, rather than death, for no reason whatever, simply based upon their own subjective notions of what is right and what is wrong. In Florida the judge and jury are requed to weigh legislatively enacted aggravating factors against legislatively enacted mitigating factors, and then base their choice between life or death on an estimate of the result of that weighing. Substantial discretion exists here, too, though it is somewhat more canalized than it is in Georgia. Why these types of discretion are regarded by the plurality as constitutionally permissible, while that which may occur in the North Carolina system is not, is not readily apparent. The freakish and arbitrary nature of the death penalty described in the separate concurring opinions of Justices Stewart, and White in Furman arose not from the perception that so Many capital sentences were being imposed but from the perception that so Few were bring imposed. To conclude that the North Carolina system is bad because juror nullification may permit jury discretion while concluding that the Georgia and Florida systems are sound because they Require this same discretion, is, as the plurality opinion demonstrates,inexplicable.
74
The Texas system much more closely approximates themandatory North Carolina system which is struck down today. The jury is required to answer three statutory questions. If the questions are unanimously answered in the affirmative, the death penalty Must be imposed. It is extremely difficult to see how this system can be any less subject to the infirmities caused by juror nullification which the plurality concludes are fatal to North Carolina's statute. Justices STEWART, POWELL, and STEVENS apparently think they can sidestep this inconsistency because of their belief that one of the three questions will permit consideration of mitigating factors justifying imposition of a life sentence. It is, however, as those Justices recognize, Jurek v. Texas, 428 U.S. 262, at 272273, 96 Ct. 2950, at 2956-2957, 49 L.Ed.2d 929, far from clear that the statute is to be read in such a fashion. In any event, while the imposition of such unlimited consideration of mitigating factors may conform to the plurality's novel constitutional doctrine that "(a) jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed," 428 U.S., at 271, 96 S.Ct., at 2956, the resulting system seems as likely as any to produce the unbridled discretion which wascondemned by the separate opinions in Furman.
75
The plurality seemsto believe, see Ante, at 303, that provision for appellate review will afford a check upon the instances of juror arbitrariness in a discretionary system. But it is not at all apparent that appellate review of death sentences, through a process of comparing the facts of one case in which a death sentence was imposed with the facts of another in which such a sentence was imposed, will afford any meaningful protection against whatever arbitrariness results from jury discretion. All that such review of death sentences can provide is a comparison of fact situations which must in their nature be highly particularized if not unique, and the only relief which it can afford is to single out the occasional death sentence which in the view of the reviewing court does not conform to the standards established by the legislature.
76
It is established,of course, that there is no right to appellate review of a criminal sentence. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). That question is not at issue here, since North Carolina, along with with the other four States whose systems the petitioners are challenging in these cases, provides appellate review for a death sentence imposed in one of its trial courts.
77
By definition, of course, there can be no separate appellate review of the factual basis for the sentencing decision in a mandatory system. If it is once established in a fairly conducted trial that the defendant has in fact committed the crime in question, the only question as to the sentence which can be raised on appeal is whether a legislative determination that such a crime should be punished by death violates the Cruel and Unusual Punishments Clause of the Eighth Amendment. Here both petitioners were convicted of first-degree murder, and there is no serious question raised by the plurality that death is not a constitutionally permissible penalty for such a crime.
78
But the plurality sees another role for appellate review in its description of the reasons why the Georgia, Texas, and Florida systems are upheld, and the North Carolina system struck down. And it is doubtless true that Georgia in particular has made a substantial effort to respond to the concerns expressed in Furman, not an easy task considering the glossolalial manner in which those concerns were expressed. The Georgia Supreme Court has indicated that the Georgia death penalty statute requires it to review death sentences imposed by juries on the basis of rough "proportionality." It has announced that it will not sustain, at least at the present time, death penalties imposed for armed robbery because that penalty is so seldom imposed by juries for that offense. It has also indicated that it will not sustain death penalties imposed for rape in certain fact situations, because the death penalty has been so seldom imposed on facts similar to those situations.
79
But while the Georgia response may be an admirable oneas a matter of policy, it has imperfections, if a failure to conform completely to the dictates of the separate opinions in Furman be deemed imperfections, which the opinion of Justices STEWART, POWELL, and STEVENS does not point out. Although there may be some disagreement between that opinion, and the opinion of my Brother White in Gregg v. Georgia, which I have joined, as to whether the proportionality review conducted by the Supreme Court of Georgia is based solely upon capital sentences imposed, or upon all sentences imposed in cases where a capital sentence could have been imposed by law, I shall assume for the purposes of this discussion that the system contemplates the latter. But this is still far from a guarantee of any equality in sentencing, and is likewise no guarantee against juror nullification. Under the Georgia system, the jury is free to recommend life imprisonment, as opposed to death, for no stated reason whatever. The Georgia Supreme Court cannot know, therefore, when it is reviewing jury sentences for life in capital cases, whether the jurors found aggravating circumstances present, but nonetheless decided to recommend mercy, or instead found no aggravating circumstances at all and opted for mercy. So the "proportionality" type of review, while it would perhaps achieve its objective if there were no possible factual lacunae in the jury verdicts, will not achieve its objective because there are necessarily such lacunae.
80
Identical defects seem inherent in the systems of appellate review provided in Texas and Florida, for neither requires the sentencing authority which concludes that a death penalty is inappropriate to state what mitigating factors were found to be present or whether certain aggravating factors urged by the prosecutor were actually found to be lacking. Without such detailed factual findings Justices STEWART, POWELL, and STEVENS praise of appellate review as a cure for the constitutional infirmities which they identify seems to me somewhatforced.
81
Appellate review affords no correction whatever with respect to those fortunate few who are the beneficiaries of random discretion exercised by juries, whether under an admittedly discretionary system or under a purportedly ndatory system. It may make corrections at one end of the spectrum, but cannot at the other. It is even less clear that any provision of the Constitution can be read to require such appellate review. If the States wish to undertake such an effort, they are undoubtedly free to do so, but surely it is notrequired by the United States Constitution.
82
The plurality'sinsistence on "standards" to "guide the jury in its inevitable exercise of the power to determine which . . . murderers shall live and which shall die" is squarely contrary to the Court's opinion in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), written by Mr. Justice Harlan and subscribed to by five other Members of the Court only five years ago. So is the plurality's latter-day recognition, some four years after the decision of the case, that Furman requires "objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death." Its abandonment of stare decisis In this repudiation of McGautha is a far lesser mistake than its substitution of a superficial and contrived constitutional doctrine for the genuine wisdom contained in McGautha. There the Court addressed the"standardless discretion" contention in this language:
83
"In our view, such force as this argument has derives largely from its generality. Those who have come to grips with the hard task of actually attempting to draft means for channeling capital sentencing discretion have confirmed the lesson taught by the history recounted above. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.
84
"Thus the British Home Office, which before the recent abolition of capital punishment in that country had the responsibility for selecting the cases from England and Wales which should receive the benefit of the Royal Prerogative of Mercy, observed:
85
" 'The difficulty of defining by any statutory provision the types of murder which ought or ought not to be punished by death may be illustrated by reference to the many diverse considerations to which the Home Secretary has regard in deciding whether to recommend clemency. No simple formula can take account of the innumerable degrees of culpability, and no formula which fails to do so can claim to be just or satisfy public opinion.' 1-2 Royal Commission on Capital Punishment, Minutes of Evidence 13 (1949)." 402 U.S., at 204-205, 91 S.Ct., at1466.
86
"In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution. The States are entitled to assume that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision and will consider a variety of factors, many of which will have been suggested by the evidence or by the arguments of defense counsel. For a court to attempt to catalog the appropriate factors in this elusive area could inhibit rather than expand the scope of consideration, for no list of circumstances would ever be really complete. The infinite variety of cases and facets to each case would make general standards either meaningless 'boiler-plate' or a statement of the obvious that no jury would need." Id., at 207-208, 91 S.Ct., at1467 (citation omitted).
87
It is also worth noting that the plurality opinion repudiates not only the view expressed by the Court in McGautha, but also, as noted in McGautha, the view which had been adhered to by every other American jurisdiction which had considered the question. See Id., at 196 n. 8,91 S.Ct., at 1461.
IV
88
The plurality opinion's insistence, in Part III-C, that if the death penalty is to be imposed there must be "particularized consideration of relevant aspects of the character and record of each convicted defendant" is buttressed by neither case authority nor reason. Its principal claim to distinction is that it contradicts important parts of Part III-A in the same opinion.
89
Part III-A, which describes what itconceives to have been society's turning away from the mandatory imposition of the death penalty, purports to express no opinion as to the constitutionality of a mandatory statute for "an extremely narrow category of homicide, such as murder by a prisoner serving a life sentence." See Ante, at 287 n. 7. Yet if "particularized consideration" is to be required in every case under the doctrine expressed in Part III-C, such a reservation in PartIII-A is disingenuous at best.
90
None of the cases half-heartedly cited by the plurality in Part III-C comes within a light-year of establishing the proposition that individualized consideration is a constitutional requisite for the imposition of the death penalty. Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 58 S.Ct. 59, 82 L.Ed. 43 (1937), upheld against a claim of violation of the Equal Protection Clause a Pennsylvania statute which made the sentence imposed upon a convict breaking out of a penitentiary dependent upon the length of the term which he was serving at the time of the break. In support of its conclusion that Pennsylvania had not denied the convict equal protection, the Court observed:
91
"The comparative gravity ofcriminal offenses and whether their consequences are more or less injurious are matters for (the State's) determination. . . . It may inflict a deserved penalty merely to vindicate the law or to deter or to reform the offender or for all of these purposes. For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender. His past may be taken to indicate his present purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him." Id., at 55, 58 S.Ct., at 60.
92
These words of Mr. Justice Butler, speaking for the Court in that case, and those of Mr. Justice Black in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the other opinion relied on by the plurality, lend no support whatever to the principle that the Constitution requires individualized consideration. This is not surprising, since even if such a doctrine had respectable support, which it has not, it is unlikely that either Mr. Justice Butler or Mr.Justice Black would have embraced it.
93
The plurality also reliesupon the indisputable proposition that "death is different" for the result which it reaches in Part III-C. But the respects in which death is "different" from other punishment which may be imposed upon convicted criminals do not seem to me to establish the proposition that the Constitution requiresindividualized sentencing.
94
One of the principal reasons why deathis different is because it is irreversible; an executed defendant cannot be brought back to life. This aspect of the difference between death and other penalties would undoubtedly support statutory provisions for specially careful review of the fairness of the trial, the accuracy of the factfinding process, and the fairness of the sentencing procedure where the death penalty is imposed. But none of those aspects of the death sentence is at issue here. Petitioners were found guilty of the crime of first-degree murder in a trial the constitutional validity of which is unquestioned here. And since the punishment of death is conceded by the plurality not to be a cruel and unusual punishment for such a crime, the irreversible aspect of the death penalty has no connection whatever with any requirement for individualizedconsideration of the sentence.
95
The second aspect of the deathpenalty which makes it "different" from other penalties is the fact that it is indeed an ultimate penalty, which ends a human life rather than simply requiring that a living human being be confined for a given period of time in a penal institution. This aspect of the difference may enter into the decision of whether or not it is a "cruel and unusual" penalty for a given offense. But since in this case the offense was first-degree murder, that particular inquiry need proceed no further.
96
The plurality's insistence on individualized consideration of thesentencing, therefore, does not depend upon any traditional application of the prohibition against cruel and unusual punishment contained in the Eighth Amendment. The punishment here is concededly not cruel and unusual, and that determination has traditionally ended judicial inquiry in our cases construing the Cruel and Unusual Punishments Clause. Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); Robinson v. California, 370 U.S. 660, 82 S.Ct. 17, 8 L.Ed.2d 758 (1962); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed.2d 422 (1947); Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879). What the plurality opinion has actually done is to import into the Due Process Clause of the Fourteenth Amendment what it conceives to be desirable procedural guarantees where the punishment of death, concededly not cruel and unusual for the crime of which the defendant was convicted, is to be imposed. This is squarely contrary to McGautha,and unsupported by any other decision of this Court.
97
I agree withthe conclusion of the plurality, and with that of Mr. Justice WHITE, that death is not a cruel and unusual punishment for the offense of which these petitioners were convicted. Since no member of the Court suggests that the trial which led to those convictions in any way fell short of the standards mandated by the Constitution, the judgments of conviction should be affirmed. The Fourteenth Amendment, giving the fullest scope to its "majestic generalities," Fay v. New York, 332 U.S. 261, 282, 67 S.Ct. 1613, 1624, 91 L.Ed. 2043 (1947), is conscripted rather than interpreted when used to permit one but not another systemfor imposition of the death penalty.
1
Tucker had been allowed to plead guilty to charges of accessory after the fact to murder and to armed robbery. He was sentenced to 10 years' imprisonment on the first charge, and to not less than 20 years nor more than 30 years on the second, the sentences to run concurrently.
2
The solicitor gave no reason for refusing to accept Waxton's offer to plead guilty to a lesser offense. The Supreme Court of North Carolina, in finding that the solicitor had not abused his discretion, noted:
"The evidence that Waxton planned and directed the robbery and that he fired the shots which killed Mrs. Butler and wounded Mr. Stancil is overwhelming. No extenuating circumstances gave the solicitor any incentive to accept the plea he tendered at the close of the State's evidence." 287 N.C. 578, 595-596, 215 S.E.2d 607, 618 (1975).
3
In addition to first-degree murder, both petitioners were found guilty of armed robbery. Waxton was also found guilty of assault with a deadly weapon with intent to kill, a charge arising from the wounding of the customer.
4
The murder statute in effect in North Carolina until April 1974 read as follows:
"s 14-17. Murder in the first and second degree defined; punishment. A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury. All other kinds of murder shall be deemed murder in the second degree, and shall be punished with imprisonment of not less than two nor more than thirty years in the State's prison." N.C.Gen.Stat. § 14-17 (1969).
5
The court characterized the effect of the statute without the invalid provision as follows:
"Upon the return of a verdict of guilty of any such offense, the court must pronounce a sentence of death. The punishment to be imposed for these capital felonies is no longer a discretionary question for the jury and therefore no longer a proper subject for an instruction by the judge." 282 N.C., at 445, 194 S.E.2d, at 28-29.
6
North Carolina also has enacted a mandatory death sentence statute for the crime of first-degree rape. N.C.Gen.Stat. § 14-21 (Cum.Supp.1975).
7
This case does not involve a mandatory death penalty statute limited to an extremely narrow category of homicide, such as murder by a prisoner serving a life sentence, defined in large part in terms of the character or record of the offender. We thus express no opinion regarding the constitutionality of such a statute. See n. 25, Infra.
8
The Eighth Amendment's proscription of cruel and unusual punishments has been held to be applicable to the States through the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).
The Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), involved statutes providing for jury discretion in the imposition of death sentences. Several members of the Court in Furman expressly declined to state their views regarding the constitutionality of mandatory death sentence statutes. See Id., at 257, 92 S.Ct., at 2735 (Douglas, J., concurring); Id., at 307, 92 S.Ct., at 2761 (Stewart, J., concurring); Id., at 310-311, 92 S.Ct., at 2762-2763 (White, J., concurring).
9
The petitioners here, as in the other four death penalty cases before the Court, contend that their sentences were imposed in violation of the Constitution because North Carolina has failed to eliminate discretion from all phases of its procedure for imposing capital punishment. We have rejected similar claims today in Gregg, Proffitt, and Jurek. The mandatory nature of the North Carolina death penalty statute for first-degree murder presents a different question under the Eighth and Fourteenth Amendments.
10
Mr. Justice Frankfurter contended that the Eighth Amendment did not apply to the States through the Fourteenth Amendment. He believed, however, that the Due Process Clause of the Fourteenth Amendment itself "expresses a demand for civilized standards." Louisiana ex rel. Francis v. Resweber, 329 U.S., at 468, 67 S.Ct., at 378 (concurring opinion).
11
See Trop v. Dulles, 356 U.S. at 99, 78 S.Ct. at 597 (plurality opinion) (dictum). See also Furman v. Georgia, supra, 408 U.S., at 291, 92 S.Ct., at 2753 (Brennan, J., concurring).
12
See Weems v. United States, 217 U.S. 349, 377, 30 S.Ct. 544, 553, 54 L.Ed. 793 (1910) (noting that the punishment of Cadena temporal at issue in that case had "no fellow in American legislation"); Furman v. Georgia, supra, 408 U.S., at 436-437, 92 S.Ct., at 2827-2828 (Powell, J., dissenting); Gregg v. Georgia, supra, 428 U.S., at 179-181, 96 S.Ct., at 2928-2929.
13
See Witherspoon v. Illinois, 391 U.S. 510, 519, and n. 15, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968); McGautha v. California, 402 U.S. 183, 201-202, 91 S.Ct. 1454, 1464-1465, 28 L.Ed.2d 711 (1971); Furman v. Georgia, supra, 408 U.S., at 388, 92 S.Ct., at 2803 (Burger, C. J., dissenting); Id., at 439-441, 92 S.Ct., at 2828-2830 (Powell, J., dissenting) ("Any attempt to discern, therefore, where prevailing standards of decency lie must take careful account of the jury's response to the question of capital punishment").
14
See H. Bedau, The Death Penalty in America, 5-6, 15, 27-28 (rev. ed. 1967) (hereafter Bedau).
15
See Id., at 1-2; R. Bye, Capital Punishment in the United States 1-2 (1919) (hereafter Bye).
16
See Bedau 6; Bye 2-3 (most New England Colonies made 12 offenses capital; Rhode Island, with 10 capital crimes, was the "mildest of all of the colonies"); Hartung, Trends in the Use of Capital Punishment, 284 Annals of Am. Academy of Pol. and Soc. Sci. 8, 10 (1952) ("The English colonies in this country had from ten to eighteen capital offenses").
17
See Bedau 23-24.
18
See Id., at 27; Knowlton, Problems of Jury Discretion in Capital Cases, 101 U.Pa.L.Rev. 1099, 1102 (1953); Mackey, The Inutility of Mandatory Capital Punishment: An Historical Note, 54 B.U.L.Rev. 32 (1974); McGautha v. California, supra, 402 U.S., at 198-199, 91 S.Ct., at 1462-1463; Andres v. United States, 333 U.S. 740, 753, 68 S.Ct. 880, 886, 92 L.Ed. 1055 (1948) (Frankfurter, J., concurring); Winston v. United States, 172 U.S. 303, 310, 19 S.Ct. 212, 214, 43 L.Ed. 456 (1899).
19
See Bye 5. During the colonial period, Pennsylvania in 1682 under the Great Law of William Penn limited capital punishment to murder. Following Penn's death in 1718, however, Pennsylvania greatly expanded the number of capital offenses. See Hartung, Supra, n. 16, at 9-10.
Many States during the early 19th century significantly reduced the number of crimes punishable by death. See Davis, The Movement to Abolish Capital Punishment in America, 1787-1861, 63 Am.Hist.Rev. 23, 27, and n. 15 (1957).
20
See Bedau 24.
21
See Ibid.; Davis, Supra, at 26-27, n. 13. By the late 1950's, some 34 States had adopted the Pennsylvania formulation, and only 10 States retained a single category of murder as defined at common law. See American Law Institute, Model Penal Code § 201.6, Comment 2, p. 66 (Tent. Draft No. 9, 1959).
22
See McGautha v. California, supra, 402 U.S., at 198-199, 91 S.Ct., at 1462-1463.
23
See Bedau 27; Mackey, Supra, n. 18; McGautha v. California, supra, at 199, 91 S.Ct., at 1463.
24
See Tenn.Laws 1837-1838, c. 29; Ala.Laws 1841; La.Laws 1846, Act No. 139. See also W. Bowers, Executions in America 7 (1974).
Prior to the Tennessee reform in 1838, Maryland had changed from a mandatory to an optional death sentence for the crimes of treason, rape, and arson. Md.Laws 1809, c. 138. For a time during the early colonial period Massachusetts, as part of its "Capitall Lawes" of 1636, apparently had a nonmandatory provision for the crime of rape. See Bedau 28.
25
See Bowers, Supra, at 7-9 (Table 1-2 sets forth the date each State adopted discretionary jury sentencing); Brief for United States as Amicus Curiae in McGautha v. California, O.T. 1970, No. 70-203, App. B (listing statutes in each State initially introducing discretionary jury sentencing in capital cases), App. C (listing state statutes in force in 1970 providing for discretionary jury sentencing in capital murder cases).
Prior to this Court's 1972 decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, there remained a handful of obscure statutes scattered among the penal codes in various States that required an automatic death sentence upon conviction of a specified offense. These statutes applied to such esoteric crimes as trainwrecking resulting in death, perjury in a capital case resulting in the execution of an innocent person, and treason against a state government. See Bedau 46-47 (1964 compilation). The most prevalent of these statutes dealt with the crime of treason against state governments. Ibid. It appears that no one has ever been prosecuted under these or other state treason laws. See Hartung, Supra, n. 16, at 10. See also T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute 1 (1959) (discussing the Michigan statute, subsequently repealed in 1963, and the North Dakota statute). Several States retained mandatory death sentences for perjury in capital cases resulting in the execution of an innocent person. Data covering the years from 1930 to 1961 indicate, however, that no State employed its capital perjury statute during that period. See Bedau 46.
The only category of mandatory death sentence statutes that appears to have had any relevance to the actual administration of the death penalty in the years preceding Furman concerned the crimes of murder or assault with a deadly weapon by a life-term prisoner. Statutes of this type apparently existed in five States in 1964. See Id., at 46-47. In 1970, only five of the more than 550 prisoners under death sentence across the country had been sentenced under a mandatory death penalty statute. Those prisoners had all been convicted under the California statute applicable to assaults by life-term prisoners. See Brief For NAACP Legal Defense and Educational Fund, Inc., et al., as Amici Curiae in McGautha v. California, O.T. 1970, No. 70-203, p. 15 n. 19. We have no occasion in this case to examine the constitutionality of mandatory death sentence statutes applicable to prisoners serving life sentences.
26
See Mackey, Supra n. 18.
27
See H.R.Rep. No. 108, 54th Cong., 1st Sess., 2 (1896) (noting that the modification of the federal capital statutes to make the death penalty discretionary was in harmony with "a growing public sentiment," quoting H.R.Rep. No. 545, 53d Cong., 2d Sess., 1 (1894)); S.Rep. No. 846, 53d Cong., 3d Sess. (1895).
28
See Report of the Special Commission for the Improvement of the Administration of Justice, North Carolina, Popular Government 13 (Jan.1949).
29
See unpublished Hearings on S. 138 before the Subcommittee on the Judiciary of the Senate Committee on the District of Columbia 19-20 (May 17, 1961) (testimony of Sen. Keating). Data compiled by a former United States Attorney for the District of Columbia indicated that juries convicted defendants of first-degree murder in only 12 of the 60 jury trials for first-degree murder held in the District of Columbia between July 1, 1953, and February 1960. Ibid. The conviction rate was "substantially below the general average in prosecuting other crimes." Id., at 20. The lower conviction rate was attributed to the reluctance of jurors to impose the harsh consequences of a first-degree murder conviction in cases where the record might justify a lesser punishment. Ibid. See McCafferty, Major Trends in the Use of Capital Punishment, 1 Am.Crim.L.Q. No. 2, pp. 9, 14-15 (1963) (discussing a similar study of first-degree murder cases in the District of Columbia during the period July 1, 1947, through June 30, 1958).
A study of the death penalty submitted to the American Law Institute noted that juries in Massachusetts and Connecticut had "for many years" resorted to second-degree murder convictions to avoid the consequences of those States' mandatory death penalty statutes for first-degree murder, prior to their replacement with discretionary sentencing in 1951. See Sellin, Supra, n. 25, at 13.
A 1973 Pennsylvania legislative report surveying the available literature analyzing mandatory death sentence statutes concluded:
"Although the data collection techniques in some instances are weak, the uniformity of the conclusions in substantiating what these authors termed 'jury nullification' (i. e. refusal to convict because of the required penalty) is impressive. Authors on both sides of the capital punishment debate reached essentially the same conclusions. Authors writing about the mandatory death penalty who wrote in 1892 reached the same conclusions as persons writing in the 1950's and 1960's." McCloskey, A Review of the Literature Contrasting Mandatory and Discretionary Systems of Sentencing Capital Cases, in Report of the Governor's Study Commission on Capital Punishment 100, 101 (Pa., 1973).
30
Not only have mandatory death sentence laws for murder been abandoned by legislature after legislature since Tennessee replaced its mandatory statute 138 years ago, but, with a single exception, no State prior to this Court's Furman decision in 1972 ever returned to a mandatory scheme after adopting discretionary sentencing. See Bedau 30; W. Bowers, Supra, n. 29, at 9. Vermont, which first provided for jury discretion in 1911, was apparently prompted to return to mandatory sentencing by a "veritable crime wave of twenty murders" in 1912. See Bedau 30. Vermont reinstituted discretionary jury sentencing in 1957.
31
Data compiled on discretionary jury sentencing of persons convicted of capital murder reveal that the penalty of death is generally imposed in less than 20% Of the cases. See Furman v. Georgia, 408 U.S., at 386-387, n. 11, 92 S.Ct., at 2802-2803 (Burger, C. J., dissenting); Id., at 435-436, n. 19, 92 S.Ct., at 2827 (Powell, J., dissenting); Brief for Petitioner in Aikens v. California, O.T. 1971, No. 68-5027, App. F (collecting data from a number of jurisdictions indicating that the percentage of death sentences in many States was well below 20%). Statistics compiled by the Department of Justice show that only 66 convicted murderers were sentenced to death in 1972. See Law Enforcement Assistance Administration, Capital Punishment, 1971-1972, Table 7a (National Prisoner Statistics Bulletin Dec. 1974). (The figure does not include persons retained in local facilities during the pendency of their appeals.)
32
Later, in Andres v. United States, Justice Frankfurter observed that the 19th century movement leading to the passage of legislation providing for discretionary sentencing in capital cases "was impelled both by ethical and humanitarian arguments against capital punishment, as well as by the practical consideration that jurors were reluctant to bring in verdicts which inevitably called for its infliction." 333 U.S., at 753, 68 S.Ct., at 886 (concurring opinion). The Court in Andres noted that the decision of Congress at the end of the 19th century to replace mandatory death sentences with discretionary jury sentencing for federal capital crimes was prompted by "(d)issatisfaction over the harshness and antiquity of the federal criminal laws." Id., at 747-748, n. 11, 68 S.Ct., at 884.
33
See n. 30, Supra.
34
A study of public opinion polls on the death penalty concluded that "despite the increasing approval for the death penalty reflected in opinion polls during the last decade, there is evidence that many people supporting the general idea of capital punishment want its administration to depend on the circumstances of the case, the character of the defendant, or both." Vidmar & Ellsworth, Public Opinion and the Death Penalty, 26 Stan.L.Rev. 1245, 1267 (1974). One poll discussed by the authors revealed that a "substantial majority" of persons opposed mandatory capital punishment. Id., at 1253. Moreover, the public through the jury system has in recent years applied the death penalty in anything but a mandatory fashion. See n. 31, Supra.
35
The fact that, as Mr. Justice REHNQUIST's dissent properly notes, some States "preferred mandatory capital punishment to no capital punishment at all," Post, at 313, is entitled to some weight. But such an artificial choice merely establishes a desire for some form of capital punishment; it is hardly "utterly inconsistent with the notion that (those States) regarded mandatory capital sentencing as beyond 'evolving standards of decency.' " Ibid. It says no more about contemporary values than would the decision of a State, thinking itself faced with a choice between a barbarous punishment and no punishment at all, to choose the former.
36
Dissenting opinions in this case and in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974, argue that this conclusion is "simply mistaken" because the American rejection of mandatory death sentence statutes might possibly be ascribable to "some maverick juries or jurors." Post, at 309, 313 (REHNQUIST, J., dissenting). See Roberts v. Louisiana, 428 U.S., at 361, 96 S.Ct., at 361 (White, J., dissenting). Since acquittals no less than convictions required unanimity and citizens with moral reservations concerning the death penalty were regularly excluded from capital juries, it seems hardly conceivable that the persistent refusal of American juries to convict palpably guilty defendants of capital offenses under mandatory death sentence statutes merely "represented the intransigence of only a small minority" of jurors. Post, at 312 (REHNQUIST, J., dissenting). Moreover, the dissenting opinions simply ignore the experience under discretionary death sentence statutes indicating that juries reflecting contemporary community values, Witherspoon v. Illinois, 391 U.S., at 519, and n. 15, 88 S.Ct., at 1775, found the death penalty appropriate for only a small minority of convicted first-degree murderers. See n. 31, Supra. We think it evident that the uniform assessment of the historical record by Members of this Court beginning in 1899 in Winston v. United States, 172 U.S. 303, 19 S.Ct. 212, 43 L.Ed.2d 456 (1899), and continuing through the dissenting opinions of The Chief Justice and Mr. Justice Blackmun four years ago in Furman, see Supra, at 296-298, and n. 32, provides a far more cogent and persuasive explanation of the American rejection of mandatory death sentences than do the speculations in today's dissenting opinions.
37
See n. 31, Supra.
38
See Gregg v. Georgia, ante, 428 U.S., at 204-206, 96 S.Ct., at 2939-2940.
39
Mr. Justice REHNQUIST's dissenting opinion proceeds on the faulty premise that if, as we hold in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, the penalty of death is not invariably a cruel and unusual punishment for the crime of murder, then it must be a proportionate and appropriate punishment for any and every murderer regardless of the circumstances of the crime and the character and record of the offender. See Post, at p. 322-324.
40
Our determination that the death sentences in this case were imposed under procedures that violated constitutional standards makes it unnecessary to reach the question whether imposition of the death penalty on petitioner Woodson would have been so disproportionate to the nature of his involvement in the capital offense as independently to violate the Eighth and Fourteenth Amendments. See Gregg v. Georgia, ante, at 187, 96 S.Ct. at 2931-2932.
| 01
|
428 U.S. 153
96 S.Ct. 2909
49 L.Ed.2d 859
Troy Leon GREGG, Petitioner,v.State of GEORGIA.
No. 74-6257.
Argued March 31, 1976.
Decided July 2, 1976.
Stay Granted July 22, 1976.
See 428 U.S. 1301, 96 S.Ct. 3235.
Rehearing Denied Oct. 4, 1976.
See 429 U.S. 875, 97 S.Ct. 197.
Syllabus
Petitioner was charged with committing armed robbery and murder on the basis of evidence that he had killed and robbed two men. At the trial stage of Georgia's bifurcated procedure, the jury found petitioner guilty of two counts of armed robbery and two counts of murder. At the penalty stage, the judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count; that it was free to consider mitigating or aggravating circumstances, if any, as presented by the parties; and that it would not be authorized to consider imposing the death sentence unless it first found beyond a reasonable doubt (1) that the murder was committed while the offender was engaged in the commission of other capital felonies, Viz., the armed robberies of the victims; (2) that he committed the murder for the purpose of receiving the victims' money and automobile; or (3) that the murder was "outrageously and wantonly vile, horrible and inhuman" in that it "involved the depravity of (the) mind of the defendant." The jury found the first and second of these aggravating circumstances and returned a sentence of death. The Georgia Supreme Court affirmed the convictions. After reviewing the trial transcript and record and comparing the evidence and sentence in similar cases the court upheld the death sentences for the murders, concluding that they had not resulted from prejudice or any other arbitrary factor and were not excessive or disproportionate to the penalty applied in similar cases, but vacated the armed robbery sentences on the ground, Inter alia, that the death penalty had rarely been imposed in Georgia for that offense. Petitioner challenges imposition of the death sentence under the Georgia statute as "cruel and unusual" punishment under the Eighth and Fourteenth Amendments. That statute, as amended following Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (where this Court held to be violative of those Amendments death sentences imposed under statutes that left juries with untrammeled discretion to impose or withhold the death penalty), retains the death penalty for murder and five other crimes. Guilt or innocence is determined in the first stage of a bifurcated trial; and if the trial is by jury, the trial judge must charge lesser included offenses when supported by any view of the evidence. Upon a guilty verdict or plea a presentence hearing is held where the judge or jury hears additional extenuating or mitigating evidence and evidence in aggravation of punishment if made known the defendant before trial. At least one of 10 specified aggravating circumstances must be found to exist beyond a reasonable doubt and designated in writing before a death sentence can be imposed. In jury cases, the trial judge is bound by the recommended sentence. In its review of a death sentence (which is automatic), the State Supreme Court must consider whether the sentence was influenced by passion, prejudice, or any other arbitrary factor; whether the evidence supports the finding of a statutory aggravating circumstance; and whether the death sentence "is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." If the court affirms the death sentence it must include in its decision reference to similar cases that it has considered. Held: The judgment is affirmed. Pp. 168-207; 220-226; 227.
233 Ga. 117, 210 S.E.2d 659, affirmed.
Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS, concluded that:
1
(1) The punishment of death for the crime of murder does not, under all circumstances, violate the Eighth and Fourteenth Amendments. Pp. 168-187.
2
(a) The Eighth Amendment, which has been interpreted in a flexible and dynamic manner to accord with evolving standards of decency, forbids the use of punishment that is "excessive" either because it involves the unnecessary and wanton infliction of pain or because it is grossly disproportionate to the severity of the crime. Pp. 169-173.
3
(b) Though a legislature may not impose excessive punishment, it is not required to select the least severe penalty possible, and a heavy burden rests upon those attacking its judgment. Pp. 174-176.
4
(c) The existence of capital punishment was accepted by the Framers of the Constitution, and for nearly two centuries this Court has recognized that capital punishment for the crime of murder is not invalid Per se. Pp. 176-178.
5
(d) Legislative measures adopted by the people's chosen representatives weigh heavily in ascertaining contemporary standards of decency; and the argument that such standards require that the Eighth Amendment be construed as prohibiting the death penalty has been undercut by the fact that in the four years since Furman, supra, was decided, Congress and at least 35 States have enacted new statutes providing for the death penalty. Pp. 179-183.
6
(e) Retribution and the possibility of deterrence of capital crimes by prospective offenders are not impermissible considerations for a legislature to weigh in determining whether the death penalty should be imposed, and it cannot be said that Georgia's legislative judgment that such a penalty is necessary in some cases is clearly wrong. Pp. 183-187.
7
(f) Capital punishment for the crime of murder cannot be viewed as invariably disproportionate to the severity of that crime. P. 187.
8
2. The concerns expressed in Furman that the death penalty not be imposed arbitrarily or capriciously can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance, concerns best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of that information. Pp. 188-195.
9
3. The Georgia statutory system under which petitioner was sentenced to death is constitutional. The new procedures on their face satisfy the concerns of Furman, since before the death penalty can be imposed there must be specific jury findings as to the circumstances of the crime or the character of the defendant, and the State Supreme Court thereafter reviews the comparability of each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. Petitioner's contentions that the changes in Georgia's sentencing procedures have not removed the elements of arbitrariness and capriciousness condemned by Furman are without merit. Pp. 196-207.
10
(a) The opportunities under the Georgia scheme for affording an individual defendant mercy whether through the prosecutor's unfettered authority to select those whom he wishes to prosecute for capital offenses and to plea bargain with them; the jury's option to convict a defendant of a lesser included offense; or the fact that the Governor or pardoning authority may commute a death sentence do not render the Georgia statute unconstitutional. P. 199.
11
(b) Petitioner's arguments that certain statutory aggravating circumstances are too broad or vague lack merit, since they need not be given overly broad constructions or have been already narrowed by judicial construction. One such provision was held impermissibly vague by the Georgia Supreme Court. Petitioner's argument that the sentencing procedure allows for arbitrary grants of mercy reflects a misinterpretation of Furman and ignores the reviewing authority of the Georgia Supreme Court to determine whether each death sentence is proportional to other sentences imposed for similar crimes. Petitioner also urges that the scope of the evidence and argument that can be considered at the presentence hearing is too wide, but it is desirable for a jury to have as much information as possible when it makes the sentencing decision. Pp. 200-204.
12
(c) The Georgia sentencing scheme also provides for automatic sentence review by the Georgia Supreme Court to safeguard against prejudicial or arbitrary factors. In this very case the court vacated petitioner's death sentence for armed robbery as an excessive penalty. Pp. 204-206.
13
Mr. Justice WHITE, joined by THE CHIEF JUSTICE and Mr. Justice REHNQUIST, concluded that:
14
1. Georgia's new statutory scheme, enacted to overcome the constitutional deficiencies found in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, to exist under the old system, not only guides the jury in its exercise of discretion as to whether or not it will impose the death penalty for first-degree murder, but also gives the Georgia Supreme Court the power and imposes the obligation to decide whether In fact the death penalty was being administered for any given class of crime in a discriminatory, standardless, or rare fashion. If that court properly performs the task assigned to it under the Georgia statutes, death sentences imposed for discriminatory reasons or wantonly or freakishly for any given category of crime will be set aside. Petitioner has wholly failed to establish that the Georgia Supreme Court failed properly to perform its task in the instant case or that it is incapable of performing its task adequately in all cases. Thus the death penalty may be carried out under the Georgia legislative scheme consistently with the Furman decision. Pp. 220-224.
15
2. Petioner's argument that the prosecutor's decisions in plea bargaining or in declining to charge capital murder are standardless and will result in the wanton or freakish imposition of the death penalty condemned in Furman, is without merit, for the assumption cannot be made that prosecutors will be motivated in their charging decisions by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts; the standards by which prosecutors decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Pp. 224-225.
16
3. Petitioner's argument that the death penalty, however imposed and for whatever crime, is cruel and unusual punishment is untenable for the reasons stated in Mr. Justice White's dissent in Roberts v. Louisiana, 428 U.S. 325, 337, 96 S.Ct. 3001, 3008, 49 L.Ed.2d 974. P. 226.
17
Mr. Justice BLACKMUN concurred in the judgment. See Furman v. Georgia, 408 U.S. 238, 405-414, 92 S.Ct. 2726, 2811-2816, 33 L.Ed.2d 346 (1972) (Blackmun, J., dissenting), and Id., at 375, 92 S.Ct., at 2796 (Burger, C.J., dissenting); Id., at 414, 92 S.Ct., at 2816 (Powell, J., dissenting); Id., at 465, 92 S.Ct., at 2842 (Rehnquist, J., dissenting.) P. 227.
18
G. Hughel Harrison, Lawrenceville, Ga., for petitioner.
19
G. Thomas Davis, Atlanta, Ga., for respondent.
20
William E. James, Los Angeles, Cal., for the State of California, as amicus curiae.
21
Sol.en. Robert H. Bork, Washington, D. C., argued for the United States, as amicus curiae.
22
Judgment of the Court, and opinion of Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS, announced by Mr. Justice STEWART.
23
The issue in this case is whether the imposition of the sentence of death for the crime of murder under the law of Georgia violates the Eighth and Fourteenth Amendments.
24
* The petitioner, Troy Gregg, was charged with committing armed robbery and murder. In accordance with Georgia procedure in capital cases, the trial was in two stages, a guilt stage and a sentencing stage. The evidence at the guilt trial established that on November 21, 1973, the petitioner and a traveling companion, Floyd Allen, while hitchhiking north in Florida were picked up by Fred Simmons and Bob Moore. Their car broke down, but they continued north after Simmons purchased another vehicle with some of the cash he was carrying. While still in Florida, they picked up another hitchhiker, Dennis Weaver, who rode with them to Atlanta, where he was let out about 11 p. m. A short time later the four men interrupted their journey for a rest stop along the highway. The next morning the bodies of Simmons and Moore were discovered in a ditch nearby.
25
On November 23, after reading about the shootings in an Atlanta newspaper, Weaver communicated with the Gwinnett County police and related information concerning the journey with the victims, including a description of the car. The next afternoon, the petitioner and Allen, while in Simmons' car, were arrested in Asheville, N. C. In the search incident to the arrest a .25-caliber pistol, later shown to be that used to kill Simmons and Moore, was found in the petitioner's pocket. After receiving the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and signing a written waiver of his rights, the petitioner signed a statement in which he admitted shooting, then robbing Simmons and Moore. He justified the slayings on grounds of self-defense. The next day, while being transferred to Lawrenceville, Ga., the petitioner and Allen were taken to the scene of the shootings. Upon arriving there, Allen recounted the events leading to the slayings. His version of these events was as follows: After Simmons and Moore left the car, the petitioner stated that he intended to rob them. The petitioner then took his pistol in hand and positioned himself on the car to improve his aim. As Simmons and Moore came up an embankment toward the car, the petitioner fired three shots and the two men fell near a ditch. The petitioner, at close range, then fired a shot into the head of each. He robbed them of valuables and drove away with Allen.
26
A medical examiner testified that Simmons died from a bullet wound in the eye and that Moore died from bullet wounds in the cheek and in the back of the head. He further testified that both men had several bruises and abrasions about the face and head which probably were sustained either from the fall into the ditch or from being dragged or pushed along the embankment. Although Allen did not testify, a police detective recounted the substance of Allen's statements about the slayings and indicated that directly after Allen had made these statements the petitioner had admitted that Allen's account was accurate. The petitioner testified in his own defense. He confirmed that Allen had made the statements described by the detective, but denied their truth or ever having admitted to their accuracy. He indicated that he had shot Simmons and Moore because of fear and in self-defense, testifying they had attacked Allen and him, one wielding a pipe and the other a knife.1
27
The trial judge submitted the murder charges to the jury on both felony-murder and nonfelony-murder theories. He also instructed on the issue of self-defense but declined to instruct on manslaughter. He submitted the robbery case to the jury on both an armed-robbery theory and on the lesser included offense of robbery by intimidation. The jury found the petitioner guilty of two counts of armed robbery and two counts of murder.
28
At the penalty stage, which took place before the same jury, neither the prosecutor nor the petitioner's lawyer offered any additional evidence. Both counsel, however, made lengthy arguments dealing generally with the propriety of capital punishment under the circumstances and with the weight of the evidence of guilt. The trial judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count. The judge further charged the jury that in determining what sentence was appropriate the jury was free to consider the facts and circumstances, if any, presented by the parties in mitigation or aggravation.
29
Finally, the judge instructed the jury that it "would not be authorized to consider (imposing) the penalty of death" unless it first found beyond a reasonable doubt one of these aggravating circumstances:
30
"One That the offense of murder was committed while the offender was engaged in the commission of two other capital felonies, to-wit the armed robbery of (Simmons and Moore).
31
"Two That the offender committed the offense of murder for the purpose of receiving money and the automobile described in the indictment.
32
"Three The offense of murder was outrageously and wantonly vile, horrible and inhuman, in that they (Sic ) involved the depravity of (the) mind of the defendant." Tr. 476-477.
33
Finding the first and second of these circumstances, the jury returned verdicts of death on each count.
34
The Supreme Court of Georgia affirmed the convictions and the imposition of the death sentences for murder. 233 Ga. 117, 210 S.E.2d 659 (1974). After reviewing the trial transcript and the record, including the evidence, and comparing the evidence and sentence in similar cases in accordance with the requirements of Georgia law, the court concluded that, considering the nature of the crime and the defendant, the sentences of death had not resulted from prejudice or any other arbitrary factor and were not excessive or disproportionate to the penalty applied in similar cases.2 The death sentences used for armed robbery, however, were vacated on the grounds that the death penalty had rarely been imposed in Georgia for that offense and that the jury improperly considered the murders as aggravating circumstances for the robberies after having considered the armed robberies as aggravating circumstances for the murders. Id., at 127, 210 S.E.2d, at 667.
35
We granted the petitioner's application for a writ of certiorari limited to his challenge to the imposition of the death sentences in this case as "cruel and unusual" punishment in violation of the Eighth and the Fourteenth Amendments. 423 U.S. 1082, 96 S.Ct. 1090, 47 L.Ed.2d 93 (1976).
II
36
Before considering the issues presented it is necessary to understand the Georgia statutory scheme for the imposition of the death penalty.3 The Georgia statute, as amended after our decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), retains the death penalty for six categories of crime: murder,4 kidnaping for ransom or where the victim is harmed, armed robbery5 rape, treason, and aircraft hijacking.66 Ga.Code Ann.§§ 26-1101, 26-1311, 26-1902, 26-2001, 26-2201, 26-3301 (1972). The capital defendant's guilt or innocence is determined in the traditional manner, either by a trial judge or a jury, in the first stage of a bifurcated trial.
37
If trial is by jury, the trial judge is required to charge lesser included offenses when they are supported by any view of the evidence. Sims v. State, 203 Ga. 668, 47 S.E.2d 862 (1948). See Linder v. State, 132 Ga.App. 624, 625, 208 S.E.2d 630, 631 (1974). After a verdict, finding, or plea of guilty to a capital crime, a presentence hearing is conducted before whoever made the determination of guilt. The sentencing procedures are essentially the same in both bench and jury trials. At the hearing:
38
"(T)he judge (or jury) shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas: Provided, however, that only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. The judge (or jury) shall also hear argument by the defendant or his counsel and the prosecuting attorney . . . regarding the punishment to be imposed." § 27-2503. (Supp.1975).
39
The defendant is accorded substantial latitude as to the types of evidence that he may introduce. See Brown v. State, 235 Ga. 644, 647-650, 220 S.Ed.2d 922, 925-926 (1975).7 Evidence considered during the guilt stage may be considered during the sentencing stage without being resubmitted. Eberheart v. State, 232 Ga. 247, 253, 206 S.E.2d 12, 17 (1974).8
40
In the assessment of the appropriate sentence to be imposed the judge is also required to consider or to include in his instructions to the jury "any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of (10) statutory aggravating circumstances which may be supported by the evidence . . .." § 27-2534.1(b) (Supp.1975). The scope of the nonstatutory aggravating or mitigating circumstances is not delineated in the statute. Before a convicted defendant may be sentenced to death, however, except in cases of treason or aircraft hijacking, the jury, or the trial judge in cases tried without a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances specified in the statute.9 The sentence of death may be imposed only if the jury (or judge) finds one of the statutory aggravating circumstances and then elects to impose that sentence. § 26-3102 (Supp.1975). If the verdict is death, the jury or judge must specify the aggravating circumstance(s) found. § 27-2534.1(c) (Supp.1975). In jury cases, the trial judge is bound by the jury's rommended sentence. §§ 26-3102, 27-2514 (Supp.1975).
41
In addition to the conventional appellate process available in all criminal cases, provision is made for special expedited direct review by the Supreme Court of Georgia of the appropriateness of imposing the sentence of death in the particular case. The court is directed to consider "the punishment as well as any errors enumerated by way of appeal," and to determine:
42
"(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or anything arbitrary factor, and
43
"(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in section 27.2534.1(b), and
44
"(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." § 27-2537 (Supp.1975).
45
If the court affirms a death sentence, it is required to include in its decision reference to similar cases that it has taken into consideration. § 27-2537(e) (Supp. 1975).10
46
A transcript and complete record of the trial, as well as a separate report by the trial judge, are transmitted to the court for its use in reviewing the sentence. § 27-2537(a) (Supp. 1975). The report is in the form of a 61/2 page questionnaire, designed to elicit information about the defendant, the crime, and the circumstances of the trial. It requires the trial judge to characterize the trial in several ways designed to test for arbitrariness and disproportionality of sentence. Included in the report are responses to detailed questions concerning the quality of the defendant's representation, whether race played a role in the trial, and, whether, in the trial court's judgment, there was any doubt about the defendant's guilt or the appropriateness of the sentence. A copy of the report is served upon defense counsel. Under its special review authority, the court may either affirm the death sentence or remand the case for resentencing. In cases in which the death sentence is affirmed there remains the possibility of executive clemency.11
III
47
We address initially the basic contention that the punishment of death for the crime of murder is, under all circumstances, "cruel and unusual" in violation of the Eighth and Fourteenth Amendments of the Constitution. In Part IV of this opinion, we will consider the sentence of death imposed under the Georgia statutes at issue in this case.
48
The Court on a number of occasions has both assumed and asserted the constitutionality of capital punishment. In several cases that assumption provided a necessary foundation for the decision, as the Court was asked to decide whether a particular method of carrying out a capital sentence would be allowed to stand under the Eighth Amendment.12 But until Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not unconstitutional per se ;13 two Justices would have reached the opposite conclusion;14 and three Justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed.15 We now hold that the punishment of death does not invariably violate the Constitution.
49
The history of the prohibition of "cruel and unusual" punishment already has been reviewed at length.16 The phrase first appeared in the English Bill of Rights of 1689, which was drafted by Parliament at the accession of William and Mary. See Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839, 852-853 (1969). The English version appears to have been directed against punishments unauthorized by statute and beyond the jurisdiction of the sentencing court, as well as those disproportionate to the offense involved. Id., at 860. The American draftsmen, who adopted the English phrasing in drafting the Eighth Amendment, were primarily concerned, however, with proscribing "tortures" and other "barbarous" methods of punishment." Id., at 842.17
50
In the earliest cases raising Eighth Amendment claims, the Court focused on particular methods of execution to determine whether they were too cruel to pass constitutional muster. The constitutionality of the sentence of death itself was not at issue, and the criterion used to evaluate the mode of execution was its similarity to "torture" and other "barbarous" methods. See Wilkerson v. Utah, 99 U.S. 130, 136 (1879) ("(I)t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment . . ."); In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933, 34 L.Ed.2d 519 (1890) ("Punishments are cruel when they involve torture or a lingering death . . ."). See also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947) (second attempt at electrocution found not to violate Eighth Amendment, since failure of initial execution attempt was "an unforeseeable accident" and "(t)here (was no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution").
51
But the Court has not confined the prohibition embodied in the Eighth Amendment to "barbarous" methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in a flexible and dynamic manner. The Court early recognized that "a principle to be vital, must be capable of wider application than the mischief which gave it birth." Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910). Thus the Clause forbidding "cruel and unusual" punishments "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." Id., at 378, 30 S.Ct., at 553. See also Furman v. Georgia, 408 U.S., at 429-430, 92 S.Ct., at 2823-2824 (Powell, J., dissenting); Trop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 597-598, 2 L.Ed.2d 630 (1958) (plurality opinion).
52
In Weems the Court addressed the constitutionality of the Philippine punishment of Cadena temporal for the crime of falsifying an official document. That punishment included imprisonment for at least 12 years and one day, in chains, at hard and painful labor; the loss of many basic civil rights; and subjection to lifetime surveillance. Although the Court acknowledged the possibility that "the cruelty of pain" may be present in the challenged punishment, 217 U.S., at 366, 30 S.Ct., at 549, it did not rely on that factor, for it rejected the proposition that the Eighth Amendment reaches only punishments that are "inhuman and barbarous, torture and the like." Id., at 368, 30 S.Ct., at 549. Rather, the Court focused on the lack of proportion between the crime and the offense:
53
"Such penalties for such offenses amaze those who have formed their conception of the relation of a state to even its offending citizens from the practice of the American commonwealths, and believe that it is a precept of justice that punishment for crime should be graduated and proportioned to offense." Id., at 366-367, 30 S.Ct., at 549.18[n]
54
Later, in Trop v. Dulles, supra, the Court reviewed the constitutionality of the punishment of denationalization imposed upon a soldier who escaped from an Army stockade and became a deserter for one day. Although the concept of proportionality was not the basis of the holding, the plurality observed in dicta that "(f)ines, imprisonment and even execution may be imposed depending upon the enormity of the crime." 356 U.S., at 100, 78 S.Ct., at 598.
55
The substantive limits imposed by the Eighth Amendment on what can be made criminal and punished were discussed in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). The Court found unconstitutional a state statute that made the status of being addicted to a narcotic drug a criminal offense. It held, in effect, that it is "cruel and unusual" to impose any punishment at all for the mere status of addiction. The cruelty in the abstract of the actual sentence imposed was irrelevant: "Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold." Id., at 667, 82 S.Ct. at 1421. Most recently, in Furman v. Georgia, supra, three Justices in separate concurring opinions found the Eighth Amendment applicable to procedures employed to select convicted defendants for the sentence of death.
56
It is clear from the foregoing precedents that the Eighth Amendment has not been regarded as a static conce. As Mr. Chief Justice Warren said, in an oft-quoted phrase, "(t)he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, Supra, 356 U.S. at 101, 78 S.Ct., at 598. See also Jackson v. Bishop, 404 F.2d 571, 579 (CA 8 1968). Cf. Robinson v. California, supra, 370 U.S., at 666, 82 S.Ct., at 1420. Thus, an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment. As we develop below more fully, see Infra, at 175-176, this assessment does not call for a subjective judgment. It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction.
57
But our cases also make clear that public perceptions of standards of decency with respect to criminal sanctions are not conclusive. A penalty also must accord with "the dignity of man," which is the "basic concept underlying the Eighth Amendment." Trop v. Dulles, supra, 356 U.S., at 100, 78 S.Ct., at 597 (plurality opinion). This means, at least, that the punishment not be "excessive." When a form of punishment in the abstract (in this case, whether capital punishment may ever be imposed as a sanction for murder) rather than in the particular (the propriety of death as a penalty to be applied to a specific defendant for a specific crime) is under consideration, the inquiry into "excessiveness" has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. Furman v. Georgia, supra, 408 U.S., at 392-393, 92 S.Ct., at 2805-2806 (Burger, C. J., dissenting). See Wilkerson v. Utah, 99 U.S., at 136; Weems v. United States, supra, 217 U.S., at 381, 30 S.Ct., at 554. Second, the punishment must not be grossly out of proportion to the severity of the crime. Trop v. Dulles, supra, 356 U.S., at 100, 78 S.Ct., at 597 (plurality opinion) (dictum); Weems v. United States, supra, 217 U.S., at 367, 30 S.Ct., at 549.
B
58
Of course, the requirements of the Eighth Amendment must be applied with an awareness of the limited role to be played by the courts. This does not mean that judges have no role to play, for the Eighth Amendment is a restraint upon the exercise of legislative power.
59
"Judicial review by definition, often involves a conflict between judicial and legislative judgment as to what the Constitution means or requires. In this respect, Eighth Amendment cases come to us in no different posture. It seems conceded by all that the Amendment imposes some obligations on the judiciary to judge the constitutionality of punishment and that there are punishments that the Amendment would bar whether legislatively approved or not." Furman v. Georgia, 408 U.S., at 313-314, 92 S.Ct., at 2764 (White, J., concurring).
60
See also Id., at 433, 92 S.Ct., at 2825 (Powell, J., dissenting).19
61
But, while we have an obligation to insure that constitutional bounds are not overreached, we may not act ajudges as we might as legislators.
62
"Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures." Dennis v. United States, 341 U.S. 494, 525, 71 S.Ct. 857, 875, 95 L.Ed. 1137 (1951) (Frankfurter, J., concurring in affirmance of judgment).20
63
Therefore, in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.
64
This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards. "(I)n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people." Furman v. Georgia, supra, 408 U.S., at 383, 92 S.Ct., at 2800 (Burger, C. J., dissenting). The deference we owe to the decisions of the state legislatures under our federal system, 408 U.S., at 465-470, 92 S.Ct., at 2842-2844 (Rehnquist, J., dissenting), is enhanced where the specification of punishments is concerned, for "these are peculiarly questions of legislative policy." Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958). Cf. Robinson v. California, 370 U.S., at 664-665, 82 S.Ct., at 1419-1420; Trop v. Dulles, 356 U.S., at 103, 78 S.Ct., at 599 (plurality opinion); In re Kemmler, 136 U.S., at 447, 10 S.Ct., at 933. Caution is necessary lest this Court become, "under the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility . . . throughout the country." Powell v. Texas, 392 U.S. 514, 533, 88 S.Ct. 2145, 2154, 20 L.Ed.2d 1254 (1968) (plurality opinion). A decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment. The ability of the people to express their preference through the normal democratic processes, as well as through ballot referenda, is shut off. Revisions cannot be made in the light of further experience. See Furman v. Georgia, Supra, 408 U.S., at 461-462, 92 S.Ct., at 2839-2840 (Powell, J., dissenting).
C
65
In the discussion to this point we have sought to identify the principles and considerations that guide a court in addressing an Eighth Amendment claim. We now consider specifically whether the sentence of death for the crime of murder is a Per se violation of the Eighth and Fourteenth Amendments to the Constitution. We note first that history and precedent strongly support a negative answer to this question.
66
The imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England. The common-law rule imposed a mandatory death sentence on all convicted murderers. McGautha v. California, 402 U.S. 183, 197-198, 91 S.Ct. 1454, 1462-1463, 28 L.Ed.2d 711 (1971 And the penalty continued to be used into the 20th century by most American States, although the breadth of the common-law rule was diminished, initially by narrowing the class of murders to be punished by death and subsequently by widespread adoption of laws expressly granting juries the discretion to recommend mercy. Id., at 199-200, 91 S.Ct., at 1463-1464. See Woodson v. North Carolina, 428 U.S. 280, 289-292, 96 S.Ct. 2978, 2984-2985, 49 L.Ed.2d 944.
67
It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State. Indeed, the First Congress of the United States enacted legislation providing death as the penalty for specified crimes. C. 9, 1 Stat. 112 (1790). The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction by imposing certain limits on the prosecution of capital cases:
68
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of law . . . ."
69
And the Fourteenth Amendment, adopted over three-quarters of a century later, similarly contemplates the existence of the capital sanction in providing that no State shall deprive any person of "life, liberty, or property" without due process of law.
70
For nearly two centuries, this Court, repeatedly and often expressly, has recognized that capital punishment is not invalid Per se. In Wilkerson v. Utah,99 U.S., at 134-135, where the Court found no constitutional violation in inflicting death by public shooting, it said:
71
"Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment."
72
Rejecting the contention that death by electrocution was "cruel and unusual," the Court in In re Kemmler, supra, 136 U.S., at 447, 10 S.Ct., at 933 reiterated:
73
"(T)he punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life."
74
Again, in Louisiana ex rel. Francis v. Resweber, 329 U.S., at 464, 67 S.Ct., at 376, the Court remarked: "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely." And in Trop v. Dulles, 356 U.S., at 99, 78 S.Ct., at 597, Mr. Chief Justice Warren, for himself and three other Justices, wrote:
75
"Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment . . . the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty." Four years ago, the petitioners in Furman and its companion cases predicated their argument primarily upon the asserted proposition that standards of decency had evolved to the point where capital punishment no longer could be tolerated. The petitioners in those cases said, in effect, that the evolutionary process had come to an end, and that standards of decency required that the Eighth Amendment be construed finally as prohibiting capital punishment for any crime regardless of its depravity and impact on society. This view was accepted by two Justices.21 Three other Justices were unwilling to go so far; focusing on the procedures by which convicted defendants were selected for the death penalty rather than on the actual punishment inflicted, they joined in the conclusion that the statutes before the Court were constitutionally invalid.22
76
The petitioners in the capital cases before the Court today renew the "standards of decency" argument, but developments during the four years since Furman Have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction.
77
The most marked indication of society's endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 States23 have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person. And the Congress of the United States, in 1974, enacted a statute providing the death penalty for aircraft piracy that results in death.24 These recently adopted statutes have attempted to address the concerns expressed by the Court in Furman Primarily (i) by specifying the factors to be weighed and the procedures to be followed in deciding when to impose a capital sentence, or (ii) by making the death penalty mandatory for specified crimes. But all of the post-Furman Statutes make clear that capital punishment itself has not been rejected by the elected representatives of the people.
78
In the only statewide referendum occurring since Furman And brought to our attention, the people of California adopted a constitutional amendment that authorized capital punishment, in effect negating a prior ruling by the Supreme Court of California in People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972), that the death penalty violated the California Constitution.25
79
The jury also is a significant and reliable objective index of contemporary values because it is so directly involved. See Furman v. Georgia, 408 U.S., at 439-440, 92 S.Ct., at 2828-2829 (Powell, J., dissenting). See generally Powell, Jury Trial of Crimes, 23 Wash. & Lee L.Rev. 1 (1966). The Court has said that "one of the most important functions any jury can perform in making . . . a selection (between life imprisonment and death for a defendant convicted in a capital case) is to maintain a link between contemporary community values and the penal system." Witherspoon v. Illinois, 391 U.S. 510, 519 n. 15, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968). It may be true that evolving standards have influenced juries in recent decades to be more discriminating in imposing the sentence of death.26 But the relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment Per se. Rather, the reluctance of juries in many cases to impose the sentence may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases. See Furman v. Georgia, supra, 408 U.S., at 388, 92 S.Ct., at 2803 (Burger, C. J., dissenting). Indeed, the actions of juries in many States since Furman are fully compatible with the legislative judgments, reflected in the new statutes, as to the continued utility and necessity of capital punishment in appropriate cases. At the close of 1974 at least 254 persons had been sentenced to death since Furman,27 and by the end of March 1976, more than 460 persons were subject to death sentences.
80
As we have seen, however, the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society. The Court also must ask whether it comports with the basic concept of human dignity at the core of the Amendment. Trop v. Dulles, 356 U.S., at 100, 78 S.Ct., at 597 (plurality opinion). Although we cannot "invalidate a category of penalties because we deem less severe penalties adequate to serve the ends of penology," Furman v. Georgia, supra, 408 U.S., at 451, 92 S.Ct., at 2834 (Powell, J., dissenting), the sanction imposed cannot be so totally without penological justification that it results in the gratuitous infliction of suffering. Cf. Wilkerson v. Utah, 99 U.S., at 135-136; In re Kemmler, 136 U.S., at 447, 10 S.Ct., at 933.
81
The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.28
82
In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct.29 This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.
83
"The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they 'deserve,' then there are sown the seeds of anarchy of self-help, vigilante justice, and lynch law." Furman v. Georgia, supra, 408 U.S., at 308, 92 S.Ct., at 2761 (Stewart, J., concurring).
84
"Retribution is no longer the dominant objective of the criminal law," Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 1084, 93 L.Ed. 1337 (1949), but neither is it a forbidden objective nor one inconsistent with our respect for the dignity of men. Furman v. Georgia, 408 U.S., at 394-395, 92 S.Ct., at 2806-2807 (Burger, C. J., dissenting); id., at 452-454, 92 S.Ct., at 2835-2836 (Powell, J., dissenting; Powell v. Texas, 392 U.S., at 531, 535-536, 88 S.Ct., at 2153, 2155-2156 (plurality opinion). Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.30[n]
85
Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate.31 The results simply have bn inconclusive. As one opponent of capital punishment has said:
86
"(A)fter all possible inquiry, including the probing of all possible methods of inquiry, we do not know, and for systematic and easily visible reasons cannot know, what the truth about this 'deterrent' effect may be . . . .
87
"The inescapable flaw is . . . that social conditions in any state are not constant through time, and that social conditions are not the same in any two states. If an effect were observed (and the observed effects, one way or another, are not large) then one could not at all tell whether any of this effect is attributable to the presence or absence of capital punishment. A 'scientific' that is to say, a soundly based conclusion is simply impossible, and no methodological path out of this tangle suggests itself." C. Black, Capital Punishment: The Inevitability of Caprice and Mistake 25-26 (1974).
88
Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties,32 there is no convincing empirical evidence either supporting or refuting this view. We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others, the death penalty undoubtedly is a significant deterrent. There are carefully contemplated murders, such as murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act.33 And there are some categories of murder, such as murder by a life prisoner, where other sanctions may not be adequate.34
89
The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. Furman v. Georgia, supra, 408 U.S., at 403-405, 92 S.Ct., at 2810-2812 (Burger, C. J., dissenting). Indeed, many of the post-Furman statutes reflect just such a responsible effort to define those crimes and those criminals for which capital punishment is most probably an effective deterrent.
90
In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of dea as a punishment for murder is not without justification and thus is not unconstitutionally severe.
91
Finally, we must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed. There is no question that death as a punishment is unique in its severity and irrevocability. Furman v. Georgia, 408 U.S., at 286-291, 92 S.Ct., at 2750-2753 (Brennan, J., concurring); Id., at 306, 92 S.Ct., at 2760 (Stewart, J., concurring). When a defendant's life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed. Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932); Reid v. Covert, 354 U.S. 1, 77, 77 S.Ct. 1222, 1262, 1 L.Ed.2d 1148 (1957) (Harlan, J., concurring in result). But we are concerned here only with the imposition of capital punishment for the crime of murder, and when a life has been taken deliberately by the offender,35 we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes.
92
We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.
IV
93
We now consider whether Georgia may impose the death penalty on the petitioner in this case.
94
* While Furman did not hold that the infliction of the death penalty Per se violates the Constitution's ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. Mr. Justice White concluded that "the death penalty is exacted with great infrequency even for the most atrocious crimes and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." 408 U.S., at 313, 92 S.Ct., at 2764 (concurring). Indeed, the death sentences examined by the Court in Furman were "cruel and unusual in the same way that being struck by lightening is cruel and unusual. For, of all the people convicted of (capital crimes), many just as reprehensible as these, the petitioners (in Furman were) among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. . . . (T)he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed." Id., at 309-310, 92 S.Ct., at 2762 (Stewart, J., concurring).36
95
Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.
96
It is certainly not a novel proposition that discretion in the area of sentencing be exercised in an informed manner. We have long recognized that "(f)or the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43 (1937). See also Williams v. Oklahoma, 358 U.S. 576, 585, 79 S.Ct. 421, 426, 3 L.Ed.2d 516 (1959); Williams v. New York, 337 U.S., at 247, 69 S.Ct., at 1083.37 Otherwise, "the system cannot function in a consistent and a rational manner." American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 4.1(a), Commentary, p. 201 (App. Draft 1968). See also President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 144 (1967); ALI, Model Penal Code § 7.07, Comment 1, pp. 52-53 (Tent. Draft No. 2, 1954).38
97
The cited studies assumed that the trial judge would be the sentencing authority. If an experienced trial judge, who daily faces the difficult task of imposing sentences, has a vital need for accurate information about a defendant and the crime he committed in order to be able to impose a rational sentence in the typical criminal case, then accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision.
98
Jury sentencing has been considered desirable in capital cases in order "to maintain a link between contemporary community values and the penal system a link without which the determination of punishment could hardly reflect 'the evolving standards of decency that mark the progress of a maturing society.' "39 But it creates special problems. Much of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question.40 This problem, however, is scarcely insurmountable. Those who have studied the question suggest that a bifurcated procedure one in which the question of sentence is not considered until the determination of guilt has been made is the best answer. The drafters of the Model Penal Codconcluded:
99
"(If a unitary proceeding is used) the determination of the punishment must be based on less than all the evidence that has a bearing on that issue, such for example as a previous criminal record of the accused, or evidence must be admitted on the ground that it is relevant to sentence, though it would be excluded as irrelevant or prejudicial with respect to guilt or innocence alone. Trial lawyers understandably have little confidence in a solution that admits the evidence and trusts to an instruction to the jury that it should be considered only in determining the penalty and disregarded in assessing guilt.
100
". . . The obvious solution . . . is to bifurcate the proceeding, abiding strictly by the rules of evidence until and unless there is a conviction, but once guilt has been determined opening the record to the further information that is relevant to sentence. This is the analogue of the procedure in the ordinary case when capital punishment is not in issue; the court conducts a separate inquiry before imposing sentence." ALI, Model Penal Code § 201.6, Comment 5, pp. 74-75 (Tent. Draft No. 9, 1959).
101
See also Spencer v. Texas, 385 U.S. 554, 567-569, 87 S.Ct. 648, 655-657, 17 L.Ed.2d 606 (1967); Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, P P 555, 574; Knowlton, Problems of Jury Discretion in Capital Cases, 101 U.Pa.L.Rev. 1099, 1135-1136 (1953). When a human life is at stake and when the jury must have information prejudicial to the question of guilt but relevant to the question of penalty in order to impose a rational sentence, a bifurcated system is more likely to ensure elimination of the constitutional deficiencies identified in Furman.41
102
But the provision of relevant information under fair procedural rules is not alone sufficient to guarantee that the information will be properly used in the imposition of punishment, especially if sentencing is performed by a jury. Since the members of a jury will have had little, if any, previous experience in sentencing, they are unlikely to be skilled in dealing with the information they are given. See American Bar Association Project on Standards for Criminal Justice, Relating to Sentencing Alternatives and Procedures, § 1.1(b), Commentary, pp. 46-47 (Approved Draft 1968); President's Commission on Law Enforcement and Administration of Justice: The Challenge of Crime in a Free Society, Task Force Report: The Courts 26 (1967). To the extent that this problem is inherent in jury sentencing, it may not be totally correctible. It seems clear, however, that the problem will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.
103
The idea that a jury should be given guidance in its decisionmaking is also hardly a novel proposition. Juries are invariably given careful instructions on the law and how to apply it before they are authorized to decide the merits of a lawsuit. It would be virtually unthinkable to follow any other course in a legal system that has traditionally operated by following prior precedents and fixed rules of law.42 See Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 498, 51 S.Ct. 513, 514, 75 L.Ed. 1188 (1931); Fed.Rule Civ.Proc. 51. When erroneous instructions are given, retrial is often required. It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations.
104
While some have suggested that standards to guide a capital jury's sentencing deliberations are impossible to formulate,43 the fact is that such standards have been developed. When the drafters of the Model Penal Code faced this problem, they concluded "that it is within the realm of possibility to point to the main circumstances of aggravation and of mitigation that should be weighed And weighed against each other when they are presented in a concrete case." ALI, Model Penal Code § 201.6, Comment 3, p. 71 (Tent. Draft No. 9, 1959) (emphasis in original).44 While such standards are by necessity somewhat general, they do provide guidance to the sentencing authority and thereby reduce the likelihood that it will impose a sentence that fairly can be called capricious or arbitrary.45 Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.
105
In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.
106
We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman,46 for each distinct system must be examined on an individual basis. Rather, we have embarked upon this general exposition to make clear that it is possible to construct capital-sentencing systems capable of meeting Furman's constitutional concerns.47
B
107
We now turn to consideration of the constitutionality of Georgia's capital-sentencing procedures. In the wake of Furman, Georgia amended its capital punishment statute, but chose not to narrow the scope of its murder provisions. See Part II, Supra. Thus, now as before Furman, in Georgia "(a) person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being." Ga.Code Ann., § 26-1101(a) (1972). All persons convicted of murder "shall be punished by death or by imprisonment for life." § 26-1101(c) (1972).
108
Georgia did act, however, to narrow the class of murderers subject to capital punishment by specifying 10 statutory aggravating circumstances, one of which must be found by the jury to exist beyond a reasonable doubt before a death sentence can ever be imposed.48 In addition, the jury is authorized to consider any other appropriate aggravating or mitigating circumstances. § 27-2534.1(b) (Supp.1975). The jury is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court, see § 27-2302 (Supp.1975), but it must find a Statutory aggravating circumstance before recommending a sentence of death.
109
These procedures require the jury to consider the circumstances of the crime and the criminal before it recommends sentence. No longer can a Georgia jury do as Furman's jury did: reach a finding of the defendant's guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury's attention is directed to the specific circumstances of the crime: Was it committed in the course of another capital felony? Was it committed for money? Was it committed upon a peace officer or judicial officer? Was it committed in a particularly heinous way or in a manner that endangered the lives of many persons? In addition, the jury's attention is focused on the characteristics of the person who committed the crime: Does he have a record of prior convictions for capital offenses? Are there any special facts about this defendant that mitigate against imposing capital punishment (E. g., his youth, the extent of his cooperation with the police, his emotional state at the time of the crime).49 As a result, while some jury discretiontill exists, "the discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application." Coley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974).
110
As an important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme provides for automatic appeal of all death sentences to the State's Supreme Court. That court is required by statute to review each sentence of death and determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury's finding of a statutory aggravating circumstance, and whether the sentence is disproportionate compared to those sentences imposed in similar cases. § 27-2537(c) (Supp.1975).
111
In short, Georgia's new sentencing procedures require as a prerequisite to the imposition of the death penalty, specific jury findings as to the circumstances of the crime or the character of the defendant. Moreover, to guard further against a situation comparable to that presented in Furman, the Supreme Court of Georgia compares each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. On their face these procedures seem to satisfy the concerns of Furman. No longer should there be "no meaningful basis for distinguishing the few cases in which (the death penalty) is imposed from the many cases in which it is not." 408 U.S., at 313, 92 S.Ct., at 2764 (White, J., concurring).
112
The petitioner contends, however, that the changes in the Georgia sentencing procedures are only cosmetic, that the arbitrariness and capriciousness condemned by Furman continue to exist in Georgia both in traditional practices that still remain and in the new sentencing procedures adopted in response to Furman.
113
* First, the petitioner focuses on the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law. He notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them. Further, at the trial the jury may choose to convict a defendant of a lesser included offense rather than find him guilty of a crime punishable by death, even if the evidence would support a capital verdict. And finally, a defendant who is convicted and sentenced to die may have his sentence commuted by the Governor of the State and the Georgia Board of Pardons and Paroles.
114
The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.50
2
115
The petitioner further contends that the capital-sentencing procedures adopted by Georgia in response to Furman do not eliminate the dangers of arbitrariness and caprice in jury sentencing that were held in Furman to be violative of the Eighth and Fourteenth Amendments. He claims that the statute is so broad and vague as to leave juries free to act as arbitrarily and capriciously as they wish in deciding whether to impose the death penalty. While there is no claim that the jury in this case relied upon a vague or overbroad provision to establish the existence of a statutory aggravating circumstance, the petitioner looks to the sentencing system as a whole (as the Court did in Furman and we do today) and argues that it fails to reduce sufficiently the risk of arbitrary infliction of death sentences. Specifically, Gregg urges that the statutory aggravating circumstances are too broad and too vague, that the sentencing procedure allows for arbitrary grants of mercy, and that the scope of the evidence and argument that can be considered at the presentence hearing is too wide.
116
The petitioner attacks the seventh statutory aggravating circumstance, which authorizes imposition of the death penalty if the murder was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim," contending that it is so broad that capital punishment could be imposed in any murder case.51 It is, of course, arguable that any murder involves depravity of mind or an aggravated battery. But this language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction.52 In only one case has it upheld a jury's decision to sentence a defendant to death when the only statutory aggravating circumstance found was that of the seventh, see McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974), and that homicide was a horrifying torture-murder.53
117
The petitioner also argues that two of the statutory aggravating circumstances are vague and therefore susceptible of widely differing interpretations, thus creating a substantial risk that the death penalty will be arbitrarily inflicted by Georgia juries.54 In light of the decisions of the Supreme Court of Georgia we must disagree. First, the petitioner attacks that part of § 27-2534.1(b)(1) that authorizes a jury to consider whether a defendant has a "substantial history of serious assaultive criminal convictions." The Supreme Court of Georgia, however, has demonstrated a concern that the new sentencing procedures provide guidance to juries. It held this provision to be impermissibly vague in Arnold v. State, 236 Ga. 534, 540, 224 S.E.2d 386, 391 (1976), because it did not provide the jury with "sufficiently 'clear and objective standards.' " Second, the petitioner points to § 27-2534.1(b)(3) which speaks of creating a "great risk of death to more than one person." While such a phrase might be susceptible of an overly broad interpretation, the Supreme Court of Georgia has not so construed it. The only case in which the court upheld a conviction in reliance on this aggravating circumstance involved a man who stood up in a church and fired a gun indiscriminately into the audience. See Chenault v. State, 234 Ga. 216, 215 S.E.2d 223 (1975). On the other hand, the court expressly reversed a finding of great risk when the victim was simply kidnaped in a parking lot. See Jarrell v. State, 234 Ga. 410, 424, 216 S.E.2d 258, 269 (1975).55
118
The petitioner next argues that the requirements of Furman are not met here because the jury has the power to decline to impose the death penalty even if it finds that one or more statutory aggravating circumstances are present in the case. This contention misinterprets Furman. See Supra, at 198-199. Moreover, it ignores the role of the Supreme Court of Georgia which reviews each death sentence to determine whether it is proportional to other sentences imposed for similar crimes. Since the proportionality requirement on review is intended to prevent caprice in the decision to inflict the penalty, the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice.
119
The petitioner objects, finally, to the wide scope of evidence and argument allowed at presentence hearings. We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument. See, E. g., Brown v. State, 235 Ga. 644, 220 S.E.2d 922 (1975). So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision. See Supra, at 189-190.
3
120
Finally, the Georgia statute has an additional provision designed to assure that the death penalty will not be imposed on a capriciously selected group of convicted defendants. The new sentencing procedures require that the State Supreme Court review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and "(w)hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." s 27-2537(c)(3) (Supp.1975).56 In performing § sentence-review function, the Georgia court has held that "if the death penalty is only rarely imposed for an act or it is substantially out of line with sentences imposed for other acts it will be set aside as excessive." Coley v. State, 231 Ga., at 834, 204 S.E.2d, at 616. The court on another occasion stated that "we view it to be our duty under the similarity standard to assure that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally . . . ." Moore v. State, 233 Ga. 861, 864, 213 S.E.2d 829, 832 (1975). See also Jarrell v. State, supra, 234 Ga., at 425, 216 S.E.2d, at 270 (standard is whether "juries generally throughout the state have imposed the death penalty"); Smith v. State, 236 Ga. 12, 24, 222 S.E.2d 308, 318 (1976) (found "a clear pattern" of jury behavior).
121
It is apparent that the Supreme Court of Georgia has taken its review responsibilities seriously. In Coley, it held that "(t)he prior cases indicate that the past practice among juries faced with similar factual situations and like aggravating circumstances has been to impose only the sentence of life imprisonment for the offense of rape, rather than death." 231 Ga., at 835, 204 S.E.2d at, 617. It thereupon reduced Coley's sentence from death to life imprisonment. Similarly, although armed robbery is a capital offense under Georgia law, § 26-1902 (1972), the Georgia court concluded that the death sentences imposed in this case for that crime were "unusual in that they are rarely imposed for (armed robbery). Thus, under the test provided by statute, . . . they must be considered to be excessive or disproportionate to the penalties imposed in similar cases." 233 Ga., at 127, 210 S.E.2d, at 667. The court therefore vacated Gregg's death sentences for armed robbery and hasollowed a similar course in every other armed robbery death penalty case to come before it. See Floyd v. State, 233 Ga. 280, 285, 210 S.E.2d 810, 814 (1974); Jarrell v. State, 234 Ga., at 424-425, 216 S.E.2d, at 270. See Dorsey v. State, 236 Ga. 591, 225 S.E.2d 418 (1976).
122
The provision for appellate review in the Georgia capital-sentencing system serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.
V
123
The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way the jury's discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.
124
For the reasons expressed in this opinion, we hold that the statutory system under which Gregg was sentenced to death does not violate the Constitution. Accordingly, the judgment of the Georgia Supreme Court is affirmed.
125
It is so ordered.
126
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring in the judgment.
127
In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), this Court held the death penalty as then administered in Georgia to be unconstitutional. That same year the Georgia Legislature enacted a new statutory scheme under which the death penalty may be imposed for several offenses, including murder. The issue in this case is whether the death penalty imposed for murder on petitioner Gregg under the new Georgia statutory scheme may constitutionally be carried out. I agree that it may.
128
* Under the new Georgia statutory scheme a person convicted of murder may receive a sentence either of death or of life imprisonment. Ga.Code Ann. § 26-1101 (1972).1 Under Georgia Code Ann. § 26-3102 (Supp. 208¢sce will be life imprisonment unless the jury at a separate evidentiary proceeding immediately following the verdict finds unanimously and beyond a reasonable doubt at least one statutorily defined "aggravating circumstance."2 The aggravating circumstances are:
129
"(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a priorecord of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.
130
"(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree.
131
"(3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.
132
"(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.
133
"(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty.
134
"(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
135
"(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
136
"(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties.
137
"(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.
138
"(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another." § 27-2534.1(b) (Supp.1975).
139
Having found an aggravating circumstance, however, the jury is not required to impose the death penalty. Instead, it is merely authorized to impose it after considering evidence of "any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the (enumerated) statutory aggravating circumstances . . . ." § 27-2534.1(b) (Supp.1975). Unless the jury unanimously determines that the death penalty should be imposed, the defendant will be sentenced to life imprisonment. In the event that the jury does impose the death penalty, it must designate in writing the aggravating circumstance which it found to exist beyond a reasonable doubt.
140
An important aspect of the new Georgia legislative scheme, however, is its provision for appellate review. Prompt review by the Georgia Supreme Court is provided for in every case in which the death penalty is imposed. To assist it in deciding whether to sustain the death penalty, the Georgia Supreme Court is supplied, in every case, with a report from the trial judge in the form of a standard questionnaire. § 27-2537(a) (Supp.1975). The questionnaire contains, Inter alia, six questions designed to disclose whether race played a role in the case and one question asking the trial judge whether the evidence forecloses "all doubt respecting the defendant' s guilt." In deciding whether the death penalty is to be sustained in any given case, the court shall determine:
141
"(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and
142
"(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in section 27-2534.1(b), and
143
"(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. . . ."
144
In order that information regarding "similar cases" may be before the court, the post of Assistant to the Supreme Court was created. The Assistant must "accumulate the records of all capital felony cases in which sentence was imposed after January 1, 1970, or such earlier date as the court may deem appropriate." § 27-2537(f).3 The court is required to include in its decision a reference to "those similar cases which it took into consideration." § 27-2537(e).
II
145
Petitioner Troy Gregg and a 16-year-old companion, Floyd Allen, were hitchhiking from Florida to Asheville, N. C., on November 21, 1973. They were picked up in an automobile driven by Fred Simmons and Bob Moore, both of whom were drunk. The car broke down and Simmons purchased a new one a 1960 Pontiac using part of a large roll of cash which he had with him. After picking up another hitchhiker in Florida and dropping him off in Atlanta, the car proceeded north to Gwinnett County, Ga., where it stopped so that Moore and Simmons could urinate. While they were out of the car Simmons was shot in the eye and Moore was st in the right cheek and in the back of the head. Both died as a result.
146
On November 24, 1973, at 3 p. m., on the basis of information supplied by the hitchhiker, petitioner and Allen were arrested in Asheville, N. C. They were then in possession of the car which Simmons had purchased; petitioner was in possession of the gun which had killed Simmons and Moore and $107 which had been taken from them; and in the motel room in which petitioner was staying was a new stereo and a car stereo player.
147
At about 11 p. m., after the Gwinnett County police had arrived, petitioner made a statement to them admitting that he had killed Moore and Simmons, but asserting that he had killed them in self-defense and in defense of Allen. He also admitted robbing them of $400 and taking their car. A few moments later petitioner was asked why he had shot Moore and Simmons and responded: "By God, I wanted them dead."
148
At about 1 o'clock the next morning, petitioner and Allen were released to the custody of the Gwinnett County police and were transported in two cars back to Gwinnett County. On the way, at about 5 a. m., the car stopped at the place where Moore and Simmons had been killed. Everyone got out of the car. Allen was asked, in petitioner's presence, how the killing occurred. He said that he had been sitting in the back seat of the 1960 Pontiac and was about half asleep. He woke up when the car stopped. Simmons and Moore got out, and as soon as they did petitioner turned around and told Allen: "Get out, we're going to rob them." Allen said that he got out and walked toward the back of the car, looked around and could see petitioner, with a gun in his hand, leaning up against the car so he could get a good aim. Simmons and Moore had gone down the bank and had relieved themselves and as they were coming up the bank petitioner fired three shots. One of the men fell, the other staggered. Petitioner then circled around the back and approached the two men, both of whom were now lying in the ditch, from behind. He placed the gun to the head of one of them and pulled the trigger. Then he went quickly to the other one and placed the gun to his head and pulled the trigger again. He then took the money, whatever was in their pockets. He told Allen to get in the car and they drove away.
149
When Allen had finished telling this story, one of the officers asked petitioner if this was the way it had happened. Petitioner hung his head and said that it was. The officer then said: "You mean you shot these men down in cold blooded murder just to rob them," and petitioner said yes. The officer then asked him why and petitioner said he did not know. Petitioner was indicted in two counts for murder and in two counts for robbery.
150
At trial, petitioner's defense was that he had killed in self-defense. He testified in his own behalf and told a version of the events similar to that which he had originally told to the Gwinnett County police. On cross-examination, he was confronted with a letter to Allen recounting a version of the events similar to that to which he had just testified and instructing Allen to memorize and burn the letter. Petitioner conceded writing the version of the events, but denied writing the portion of the letter which instructed Allen to memorize and burn it. In rebuttal, the State called a handwriting expert who testified that the entire letter was written by the same person.
151
The Jury was instructed on the elements of murder4 and robbery. The trial judge gave an instruction on self-defense, but refused to submit the lesser included the offense of manslaughter to the jury. It returned verdicts of guilty on all counts.
152
No new evidence was presented at the sentencing proceeding. However, the prosecutor and the attorney for petitioner each made arguments to the jury on the issue of punishment. The prosecutor emphasized the strength of the case against petitioner and the fact that he had murdered in order to eliminate the witnesses to the robbery. The defense attorney emphasized the possibility that a mistake had been made and that petitioner was not guilty. The trial judge instructed the jury on their sentencing function and in so doing submitted to them three statutory aggravating circumstances. He stated:
153
"Now, as to counts one and three, wherein the defendant is charged with the murders of has been found guilty of the murders of (Simmons and Moore), the following aggravating circumstances are some that you can consider, as I say, you must find that these existed beyond a reasonable doubt before the death penalty can be imposed.
154
"One That the offense of murder was committed while the offender was engaged in the commission of two other capital felonies, to-wit the armed robbery of (Simmons and Moore).
155
"Two That the offender committed the offense of murder for the purpose of receiving money and the automobile described in the indictment.
156
"Three The offense of murder was outrageously and wantonly vile, horrible and inhuman, in that they involved the depravity of mind of the defendant.
157
"Now, so far as the counts two and four, that is the counts of armed robbery, of which you have found the defendant guilty, then you may find inquire into these aggravating circumstances.
158
"That the offense of armed robbery was committed while the offender was engaged in the commission of two capital felonies, to-wit the murders of (Simmons and Moore) or that the offender committed the offense of armed robbery for the purpose of receiving money and the automobile set forth in the indictment, or three, that the offense of armed robbery was outrageously and wantonly vile, horrible and inhuman in that they involved the depravity of the mind of the defendant.
159
Now, if you find that there was one or more of these aggravating circumstances existed beyond a reasonable doubt, then and I refer to each individual count, then you would be authorized to consider imposing the sentence of death.
160
"If you do not find that one of these aggravating circumstances existed beyond a reasonable doubt, in either of these counts, then you would not be authorized to consider the penalty of death. In that event, the sentence as to counts one and three, those are the counts wherein the defendant was found guilty of murder, the sentence could be imprisonment for life." Tr. 476-477.
161
The jury returned the death penalty on all four counts finding all the aggravating circumstances submitted to it, except that it did not find the crimes to have been "outrageously or wantonly vile," etc.
162
On appeal the Georgia Supreme Court affirmed the death sentences on the murder counts and vacated the death sentences on the robbery counts. 233 Ga. 117, 210 S.E.2d 659 (1974). It concluded that the murder sentences were not imposed under the influence of passion, prejudice, or any other arbitrary factor; that the evidence supported the finding of a statutory aggravating factor with respect to the murders; and, citing several cases in which the death penalty had been imposed previously for murders of persons who had witnessed a robbery, held:
163
"After considering both the crimes and the defendant and after comparing the evidence and the sentences in this case with those of previous murder cases, we are also of the opinion that these two sentences of death are not excessive or disproportionate to the penalties imposed in similar cases which are hereto attached."5 Id., at 127, 210 S.E.2d, at 667.
164
However, it held with respect to the robbery sentences:
165
"Although there is no indication that these two sentences were imposed under the influence of passing, prejudice or any other arbitrary factor, the sentences imposed here are unusual in that they are rarely imposed for this offense. Thus, under the test provided by statute for comparison (Code Ann. § 27-2537(c), (3)), they must be considered to be excessive or disproportionate to the penalties imposed in similar cases." Ibid.
166
Accordingly, the sentences on the robbery counts were vacated.
III
167
The threshold question in this case in whether the death penalty may be carried out for murder under the Georgia legislative scheme consistent with the decision in Furman v. Georgia, supra. In Furman, this Court held that as a result of giving the sentencer unguided discretion to impose or not to impose the death penalty for murder, the penalty was being imposed discriminatorily,6 21¢s wantonly and freakishly,7 and so infrequently8 that any given death sentence was cruel and unusual. Petitioner argues that, as in Furman, the jury still the sentencer; that the statutory criteria to be considered by the jury on the issue of sentence under Georgia's new statutory scheme are vague and do not purport to be all-inclusive; and that, in any event, there are No circumstances under which the jury is required to impose the death penalty.9 Consequently, the petitioner argues that the death penalty will inexorably be imposed in as discriminatory, standardless, and rare a manner as it was imposed under the scheme declared invalid in Furman.
168
The argument is considerably overstated. The Georgia Legislature has made an effort to identify those aggravating factors which it considers necessary and relevant to the question whether a defendant convicted of capital murder should be sentenced to death.10 The jury which imposes sentence is instructed on all statutory aggravating factors which are supported by the evidence, and is told that it may not impose the death penalty unless it unanimously finds at least one of those factors to have been established beyond a reasonable doubt. The Georgia Legislature has plainly made an effort to guide the jury in the exercise of its discretion, while at the same time permitting the jury to dispense mercy on the basis of factors too intangible to write into a statute, and I cannot accept the naked assertion that the effort is bound to fail. As the types of murders for which the death penalty may be imposed become more narrowly defined and are limited to those which are particularly serious or for which the death penalty is peculiarly appropriate as they are in Georgia by reason of the aggravating-circumstance requirement, it becomes reasonable to expect that juries even given discretion Not to impose the death penalty will impose the death penalty in a substantial portion of the cases so defined. If they do, it can no longer be said that the penalty is being imposed wantonly and freakishly or so infrequently that it loses its usefulness as a sentencing device. There is, therefore, reason to expect that Georgia's current system would escape the infirmities which invalidated its previous system under Furman. However, the Georgia Legislature was not satisfied with a system which might, but also might not, turn out in practice to result in death sentences being imposed with reasonable consistency for certain serious murders. Instead, it gave the Georgia Supreme Court the power and the obligation to perform precisely the task which three Justices of this Court, whose opinions were necessary to the result, performed in Furman : namely, the task of deciding whether in fact the death penalty was being administered for any given class of crime in a discriminatory, standardless, or rare fashion.
169
In considering any given death sentence on appeal the Georgia Supreme Court is to determine whether the sentence imposed was consistent with the relevant statutes I. e., whether there was sufficient evidence to support the finding of an aggravating circumstance. Ga.Code Ann. § 27-2537(c)(2) (Supp.1975). However it must do much more than determine whether the penalty was lawfully imposed. It must go on to decide after reviewing the penalties imposed in "similar cases" whether the penalty is "excessive or disproportionate" considering both the crime and the defendant. § 27-2537(c)(3) (Supp.1975). The new Assistant to the Supreme Court is to assist the court in collecting the records of "all capital felony cases"11 in the State of Georgia in which sentence was imposed after January 1, 1970. § 27-2537(f) (Supp.1975). The court also has the obligation of determining whether the penalty was "imposed under the influence of passion, prejudice or any other arbitrary factor." § 27-2537(c)(1) (Supp.1975). The Georgia Supreme Court has interpreted the appellate review statute to require it to set aside the death sentence whenever juries across the State impose it only rarely for the type of crime in question; but to require it to affirm death sentences whenever juries across the State generally impose it for the crime in question. Thus in this case the Georgia Supreme Court concluded that the death penalty was so rarely imposed for the crime of robbery that it set aside the sentences on the robbery counts and effectively foreclosed that penalty from being imposed for that crime in the future under the legislative scheme now in existence. Similarly the Georgia Supreme Court has determined that juries impose the death sentence too rarely with respect to certain classes of rape. Compare Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974) with Coker v. State, 234 Ga. 555, 216 S.E.2d 782 (1975). However it concluded that juries "generally throughout the state" have imposed the death penalty for those whomurder witnesses to armed robberies. Jarrell v. State, 234 Ga. 410, 425, 216 S.E.2d 258, 270 (1975). Consequently it affirmed the sentences in this case on the murder counts. If the Georgia Supreme Court is correct with respect to this factual judgment imposition of the death penalty in this and similar cases is consistent with Furman. Indeed, if the Georgia Supreme Court properly performs the task assigned to it under the Georgia statutes, death sentences imposed for discriminatory reasons or wantonly or freakishly for any given category of crime will be set aside. Petitioner has wholly failed to establish, and has not even attempted to establish, that the Georgia Supreme Court failed properly to perform its task in this case or that it is incapable of performing its task adequately in all cases; and this Court should not assume that it did not do so.
170
Petitioner also argues that decisions made by the prosecutor either in negotiating a plea to some lesser offense than capital murder or in simply declining to charge capital murder are standardless and will inexorably result in the wanton and freakish imposition of the penalty condemned by the judgment in Furman. I address this point separately cause the cases in which no capital offense is charged escape the view of the Georgia Supreme Court and are not considered by it in determining whether a particular sentence is excessive or disproportionate.
171
Petitioner's argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that since prosecutors have the power not to charge capital felonies they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. Unless prosecutors are incompetent in their judgments the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Thus defendants will escape the death penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because the proof is insufficiently strong. This does not cause the system to be standardless any more than the jury's decision to impose life imprisonment on a defendant whose crime is deemed insufficiently serious or its decision to acquit someone who is probably guilty but whose guilt is not established beyond a reasonable doubt. Thus the prosecutor's charging decisions are unlikely to have removed from the sample of cases considered by the Georgia Supreme Court any which are truly "similar." If the cases really were "similar" in relevant respects it is unlikely that prosecutors would fail to prosecute them as capital cases; and I am unwilling to assume the contrary.
172
Petitioner's argument that there is an unconstitutional amount of discretion in the system which separates those suspects who receive the death penalty fromthose who receive life imprisonment a lesser penalty or are acquitted or never charged seems to be in final analysis an indictment of our entire system of justice. Petitioner has argued in effect that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law. Imposition of the death penalty is surely an awesome responsibility for any system of justice and those who participate in it. Mistakes will be made and discriminations will occur which will be difficult to explain. However, one of society's most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder. I decline to interfere with the manner in which Georgia has chosen to enforce such laws on what is simply an assertion of lack of faith in the ability of the system of justice to operate in a fundamentally fair manner.
IV
173
For the reasons stated in dissent in Roberts v. Louisiana, 428 U.S., at 350, 96 S.Ct., at 3014, neither can I agree with the petitioner's other basic argument that the death penalty, however imposed and for whatever crime, is cruel and unusual punishment.
174
I therefore concur in the judgment of affirmance.
175
Statement of THE CHIEF JUSTICE and Mr. Justice REHNQUIST:
176
We concur in the judgment and join the opinion of Mr. Justice WHITE agreeing with its analysis that Georgia's system of capital punishment comports with the Court's holding in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
177
Mr. Justice BLACKMUN, concurring in the judgment.
178
I concur in the judgment. See Furman v. Georgia, 408 U.S. 238, 405-414, 92 S.Ct. 2726, 2811-2816, 33 L.Ed.2d 346 (1972) (Blackmun J., dissenting), and Id., at 375, 92 S.Ct., at 2796 (Burger, C.J., dissenting); Id., at 414, 92 S.Ct., at 2816 (Powell, J., dissenting); Id., at 465, 92 S.Ct., at 2842 (Rehnquist, J., dissenting).
179
Mr. Justice BRENNAN, dissenting.
180
The Cruel and Unusual Punishments Clause "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."1 The opinions of Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS today hold that "evolving standards of decency" require focus not on the essence of the death penalty itself but primarily upon the procedures employed by the State to single out persons to suffer the penalty of death. Those opinions hold further that, so viewed, the Clause invalidates the mandatory infliction of the death penalty but not its infliction under sentencing procedures that Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS conclude adequately safeguard against the risk that the death penalty was imposed in an arbitrary and capricious manner.
181
In Furman v. Georgia, 408 U.S. 238, 257, 92 S.Ct. 2726, 2735, 33 L.Ed.2d 346 (1972) (concurring opinion), I read "evolving standards of decency" as requiring focus upon the essence of the death penalty itself and not primarily or solely upon the procedures under which the determination to inflict the penalty upon a particular person was made. I there said:
182
"From the beginning of our Nation, the punishment of death has stirred acute public controversy. Although pragmatic arguments for and against the punishment have been frequently advanced, this longstanding and heated controversy cannot be explained solely as the result of differences over the practical wisdom of a particular government policy. At bottom, the battle has been waged on moral grounds. The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death. In the United States, as in other nations of the western world, 'the struggle about this punishment has been one between ancient and deeply rooted beliefs in retribution, atonement or vengeance on the one hand, and, on the other, beliefs in the personal value and dignity of the common man that were born of the democratic movement of the eighteenth century, as well as beliefs in the scientific approach to an understanding of the motive forces of human conduct, which are the result of the growth of the sciences of behavior during the nineteenth and twentieth centuries.' It is this essentially moral conflict that forms the backdrop for the past changes in and the present operation of our system of imposing death as a punishment for crime." Id., at 296, 92 S.Ct., at 2755.2
183
That continues to be my view. For the Clause forbidding cruel and unusual punishments under our constitutional system of government embodies in unique degree moral principles restraining the punishments at our civilized society may impose on those persons who transgress its laws. Thus, I too say: "For myself, I do not hesitate to assert the proposition that the only way the law has progressed from the days of the rack, the screw and the wheel is the development of moral concepts, or, as stated by the Supreme Court . . . the application of 'evolving standards of decency' . . .."3
184
This Court inescapably has the duty, as the ultimate arbiter of the meaning of our Constitution, to say whether, when individuals condemned to death stand before our Bar, "moral concepts" require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society.4 My opinion in Furman v. Georgia concluded that our civilization and the law had progressed to this point and that therefore the punishment of death, for whatever crime and under all circumstances, is "cruel and unusual" in violation of the Eighth and Fourteenth Amendments of the Constitution. I shall not again canvass the reasons that led to that conclusion. I emphasize only that foremost among the "moral concepts" recognized in our cases and inherent in the Clause is the primary moral principle that the State, even as it punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings a punishment must not be so severe as to be degrading to human dignity. A judicial determination whether the punishment of death comports with human dignity is therefore not only permitted but compelled by the Clause. 408 U.S., at 270, 92 S.Ct., at 2742.
185
I do not understand that the Court disagrees that "(i)n comparison to all other punishments today . . . the deliberate extinguishment of human life by the State is uniquely degrading to human dignity." Id., at 291, 92 S.Ct., at 2752. For three of my Brethren hold today that mandatory infliction of the death penalty constitutes the penalty cruel and unusual punishment. I perceive no principled basis for this limitation. Death for whatever crime and under all circumstances "is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity. . . . An executed person has indeed 'lost the right to have rights.' " Id., at 290, 92 S.Ct. at 2752. Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the Clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment. Id., at 279, 92 S.Ct., at 2747.
186
The fatal constitutional infirmity in the punishment of death is that it treats "members of the human race as nonhumans, as objects to be toyed with and discarded. (It is) thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity." Id., at 273, 92 S.Ct., at 2743. As such it is a penalty that "subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the (Clause)."5 I therefore would hold, on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause. "Justice of this kind is obviously no less shocking than the crime itself, and the new 'official' murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first."6
187
I dissent from the judgments in No. 74-6257, Gregg v. Georgia, No. 75-5706, Proffitt v. Florida, and No. 75-5394, Jurek v. Texas, insofar as each upholds the death sentences challenged in those cases. I would set aside the death sentences imposed in those cases as violative of the Eighth and Fourteenth Amendments.
188
Mr. Justice MARSHALL, dissenting.
189
In Furman v. Georgia, 408 U.S. 238, 314, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346 (1972) (concurring opinion), I set forth at some length my views on the basic issue presented to the Court in these cases. The death penalty, I concluded, is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. That continues to be my view.
190
I have no intention of retracing the "long and tedious journey," Id., at 370, 92 S.Ct., at 2793, that led to my conclusion in Furman. My sole purposes here are to consider the suggestion that my conclusion in Furman has been undercut by developments since then, and briefly to evaluate the basis for my Brethren's holding that the extinction of life is a permissible form of punishment under the Cruel and Unusual Punishments Clause.
191
In Furman I concluded that the death penalty is constitutionally invalid for two reasons. First, the death penalty is excessive. Id., at 331-332; 342-359, 92 S.Ct., at 2773; 2778-2787. And second, the American people, fully informed as to the purpes of the death penalty and its liabilities, would in my view reject it as morally unacceptable. Id., at 360-369, 92 S.Ct., at 2788-2792.
192
Since the decision in Furman, the legislatures of 35 States have enacted new statutes authorizing the imposition of the death sentence for certain crimes, and Congress has enacted a law providing the death penalty for air piracy resulting in death. 49 U.S.C. §§ 1472(i), (n) (1970 ed., Supp.IV). I would be less than candid if I did not acknowledge that these developments have a significant bearing on a realistic assessment of the moral acceptability of the death penalty to the American people. But if the constitutionality of the death penalty turns, as I have urged, on the opinion of an Informed citizenry, then even the enactment of new death statutes cannot be viewed as conclusive. In Furman, I observed that the American people are largely unaware of the information critical to a judgment on the morality of the death penalty, and concluded that if they were better informed they would consider it shocking, unjust, and unacceptable. 408 U.S., at 360-369, 92 S.Ct., at 2788-2792. A recent study, conducted after the enactment of the post-Furman statutes, has confirmed that the American people know little about the death penalty, and that the opinions of an informed public would differ significantly from those of a public unaware of the consequences and effects of the death penalty.1
193
Even assuming, however, that the post-Furman enactment of statutes authorizing the death penalty renders the prediction of the views of an informed citizenry an uncertain basis for a constitutional decision, the enactment of those statutes has no bearing whatsoever on the conclusion that the death penalty is unconstitutional because it is excessive. An excessive penalty is invalid under the Cruel and Unusual Punishments Clause "even though popular sentiment may favor" it. Id., at 331, 92 S.Ct., at 2773; Ante, at 173, 182-183 (opinion of STEWART, POWELL, and STEVENS, JJ.); Roberts v. Louisiana, 428 U.S. 325, at 353-354, 96 S.Ct. 3001, at 3016, 49 L.Ed.2d 974 (White, J., dissenting). The inquiry here, then, is simply whether the death penalty is necessary to accomplish the legitimate legislative purposes in punishment, or whether a less severe penalty life imprisonment would do as well. Furman, supra, at 342, 92 S.Ct., at 2778 (Marshall, J., concurring).
194
The two purposes that sustain the death penalty as nonexcessive in the Court's view are general deterrence and retribution. In Furman, I canvassed the relevant data on the deterrent effect of capital punishment. 408 U.S., at 347-354, 92 S.Ct., at 2781-2785.2 The state of knowledge at that point, after literally centuries of debate, was summarized as follows by a United Nations Committee:
195
"It is generally agreed between the retentionists and abolitionists, whatever their opinions about the validity of comparative studies of deterrence, that the data which now exist show no correlation between the existence of capital punishment and lower rates of capital crime."3
196
The available evidence, I concluded in Furman, was convincing that "capital punishment is not necessary as a deterrent to crime in our society." Id., at 353, 92 S.Ct., at 2784.
197
The Solicitor General in his amicus brief in these cases relies heavily on a study by Isaac Ehrlich,4 reported a year after Furman, to support the contention that the death penalty does deter murder. Since the Ehrlich study was not available at the time of Furman and since it is the first scientific study to suggest that the death penalty may have a deterrent effect, I will briefly consider its import.
198
The Ehrlich study focused on the relationship in the Nation as a whole between the homicide rate and "execution risk" the fraction of persons convicted of murder who were actually executed. Comparing the differences in homicide rate and execution risk for the years 1933 to 1969, Ehrlich found that increases in execution risk were associated with increases in the homicide rate.5 But when he employed the statistical technique of multiple regression analysis to control for the influence of other variables posited to have an impact on the homicide rate,6 Ehrlich found a negative correlation between changes in the homicide rate and changes in execution risk. His tentative conclusion was that for the period from 1933 to 1967 each additional execution in the United States might have saved eight lives.7
199
The methods and conclusions of the Ehrlich study have been severely criticized on a number of grounds.8 It has been suggested, for example, that the study is defective because it compares execution and homicide rates on a nationwide, rather than a state-by-state, basis. The aggregation of data from all States including those that have been abolished the death penalty obscures the relationship between murder and execution rates. Under Ehrlich's methodology, a decrease in the execution risk in one State combined with an increase in the murder rate in another State would, all other things being equal, suggest a deterrent effect that quite obviously would not exist. Indeed, a deterrent effect would be suggested if, once again all other things being equal, one State abolished the death penalty and experienced no change in the murder rate, while another State experienced an increase in the murder rate.9
200
The most compelling criticism of the Ehrlich study is that its conclusions are extremely sensitive to the choice of the time period included in the regression analysis. Analysis of Ehrlich's data reveals that all empirical support for the deterrent effect of capital punishment disappears when the five most recent years are removed from his time series that is to say, whether a decrease in the execution risk corresponds to an increase or a decrease in the murder rate depends on the ending point of the sample period.10 This finding has cast severe doubts on the reliability of Ehrlich's tentative conclusions.11 Indeed, a recent regression study, based on Ehrlich's theoretical model but using cross-section state data for the years 1950 and 1960 found no support for the conclusion that executions act as a deterrent.12
201
The Ehrlich study, in short, is of little, if any, assistance in assessing the deterrent impact of the death penalty. Accord, Commonwealth v. O'Neal, —- Mass. ——, 339 N.E.2d 676, 684 (1975). The evidence I reviewed in Furman13 remains convincing, in my view that "capital punishment is not necessary as a deterrent to crime in our society." 408 U.S., at 353, 92 S.Ct., at 2784. The justification for the death penalty must be found elsewhere.
202
The other principal purpose said to be served by the death penalty is retribution.14 The notion that retribution can serve as a moral justification for the sanction of death finds credence in the opinion of my Brothers STEWART, POWELL, and STEVENS, and that of my Brother White in Roberts v. Louisiana, 428 U.S., at 337, 96 S.Ct., at 3008. See also Furman v. Georgia, 408 U.S., at 394-395, 92 S.Ct., at 2806-2807 (Burger, C. J., dissenting). It is this notion that I find to be the most disturbing aspect of today's unfortunate decisions.
203
The concept of retribution is a multifaceted one, and any discussion of its role in the criminal law must be undertaken with caution. On one level, it can be said that the notion of retribution or reprobation is the basis of our insistence that only those who have broken the law be punished, and in this sense the notion is quite obviously central to a just system of criminal sanctions. But our recognition that retribution plays a crucial role in determining who may be punished by no means requires approval of retribution as a general justification for punishment.15 It is the question whether retribution can provide a moral justification for punishment in particular, capital punishment that we must consider.
204
My Brothers STEWART, POWELL, and STEVENS offer the following explanation of the retributive justification for capital punishment:
205
" 'The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they 'deserve,' then there are sown the seeds of anarchy of self-help, vigilante justice, and lynch law.' " Ante, at 183, quoting from Furman v. Georgia, supra 408 U.S., at 308, 92 S.Ct., at 2761 (Stewart, J., concurring).
206
This statement is wholly inadequate to justify the death penalty. As my Brother Brennan stated in Furman, "(t)here is no evidence whatever that utilization of imprisonment rather than death encourages private blood feuds and other disorders." 408 U.S., at 303, 92 S.Ct., at 2758 (concurring opinion).16 It simply defies belief to suggest that the death penalty is necessary to prevent the American people from taking the law into their own hands.
207
In a related vein, it may be suggested that the expression of moral outrage through the imposition of the death penalty serves to reinforce basic moral values that it marks some crimes as particularly offensive and therefore to be avoided. The argument is akin to a deterrence argument, but differs in that it contemplates the individual's shrinking from antisocial conduct, not because he fears punishment, but because he has been told in the strongest possible way that the conduct is wrong. This contention, like the previous one, provides no support for the death penalty. It is inconceivable that any individual concerned about conforming his conduct to what society says is "right" would fail to realize that murder is "wrong" if the penalty were simply life imprisonment.
208
The foregoing contentions that society's expression of moral outrage through the imposition of the death penalty pre-empts the citizenry from taking the law into its own hands and reinforces moral values are not retributive in the purest sense. They are essentially utilitarian in that they portray the death penalty as valuable because of its beneficial results. These justifications for the death penalty are inadequate because the penalty is, quite clearly I think, not necessary to the accomplishment of those results.
209
There remains for consideration, however, what might be termed the purely retributive justification for the death penalty that the death penalty is appropriate, not because of its beneficial effect on society, but because the taking of the murderer's life is itself morally good.17 Some of the language of the opinion of my Brothers STEWART, POWELL, and STEVENS, in No. 74-6257 appears positively to embrace this notion of retribution for its own sake as a justification for capital punishment.18 They state:
210
"(T)he decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." Ante, at 184 (footnote omitted).
211
They then quote with approval from Lord Justice Denning's remarks before the British Royal Commission on Capital Punishment:
212
" 'The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.' " Ante, at 184 n. 30.
213
Of course, it may be that these statements are intended as no more than observations as to the popular demands that it is thought must be responded to in order to prevent anarchy. But the implication of the statements appears to me to be quite different namely, that society's judgment that the murderer "deserves" death must be respected not simply because the preservation of order requires it, but because it is appropriate that society make the judgment and carry it out. It is this latter notion, in particular, that I consider to be fundamentally at odds with the Eighth Amendment. See Furman v. Georgia, 408 U.S., at 343-345, 92 S.Ct., at 2779-2780 (Marshall, J., concurring). The mere fact that the community demands the murderer's life in return for the evil he has done cannot sustain the death penalty, for as Justices STEWART, POWELL, and STEVENS remind us, "the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society." Ante, at 182. To be sustained under the Eighth Amendment, the death penalty must "compor(t) with the basic concept of human dignity at the core of the Amendment," Ibid. the objective in imposing it must be "(consistent) with our respect for the dignity of (other) men." Ante, at 183. See Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion). Under these standards, the taking of life "because the wrongdoer deserves it" surely must fall, for such a punishment has as its very basis the total denial of the wrong-doer's dignity and worth.19
214
The death penalty, unnecessary to promote the goal of deterrence or to further any legitimate notion of retribution, is an excessive penalty forbidden by the Eighth and Fourteenth Amendments. I respectfully dissent from the Court's judgment upholding the sentences of death imposed upon the petitioners in these cases.
1
On cross-examination the State introduced a letter written by the petitioner to Allen entitled, "(a) statement for you," with the instructions that Allen memorize and then burn it. The statement was consistent with the petitioner's testimony at trial.
2
The court further held, in part, that the trial court did not err in refusing to instruct the jury with respect to voluntary manslaughter since there was no evidence to support that verdict.
3
Subsequent to the trial in this case limited portions of the Georgia statute were amended. None of these amendments changed significantly the substance of the statutory scheme. All references to the statute in this opinion are to the current version.
4
Georgia Code Ann. § 26-1101 (1972) provides:
"(a) A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.
"(b) A person also commits the crime of murder when in the commission of a felony he causes the death of another human being, irrespective of malice.
"(c) A person convicted of murder shall be punished by death or by imprisonment for life."
5
Section 26-1902 (1972) provides:
"A person commits armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. The offense robbery by intimidation shall be a lesser included offense in the offense of armed robbery. A person convicted of armed robbery shall be punished by death or imprisonment for life, or by imprisonment for not less than one nor more than 20 years."
6
These capital felonies currently are defined as they were when Furman was decided. The 1973 amendments to the Georgia statute, however, narrowed the class of crimes potentially punishable by death by eliminating capital perjury. Compare § 26-2401 (Supp.1975) with § 26-2401 (1972).
7
It is not clear whether the 1974 amendments to the Georgia statute were intended to broaden the types of evidence admissible at the presentence hearing. Compare § 27-2503(a) (Supp.1975) with § 27-2534 (1972) (deletion of limitation "subject to the laws of evidence").
8
Essentially the same procedures are followed in the case of a guilty plea. The judge considers the factual basis of the plea, as well as evidence in aggravation and mitigation. See Mitchell v. State, 234 Ga. 160, 214 S.E.2d 900 (1975).
9
The statute provides in part:
"(a) The death penalty may be imposed for the offenses of aircraft hijacking or treason, in any case.
"(b) In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence:
"(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.
"(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree.
"(3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.
"(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.
"(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty.
"(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
"(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
"(8) The offense of murder was committed against any peace
officer, corrections employee or fireman while engaged in the performance of his official duties.
"(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.
"(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another.
"(c) The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation. The jury, if its verdict be a recommendation of death, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In non-jury cases the judge shall make such designation. Except in cases of treason or aircraft hijacking, unless at least one of the statutory aggravating circumstances enumerated in section 27-2534.1(b) is so found, the death penalty shall not be imposed." § 27-2534.1 (Supp.1975).
The Supreme Court of Georgia, in Arnold v. State, 236 Ga. 534, 540, 224 S.E.2d 386, 391 (1976), recently held unconstitutional the portion of the first circumstance encompassing persons who have a "substantial history of serious assaultive criminal convictions" because it did not set "sufficiently 'clear and objective standards.' "
10
The statute requires that the Supreme Court of Georgia obtain and preserve the records of all capital felony cases in which the death penalty was imposed after January 1, 1970, or such earlier date that the court considers appropriate. § 27-2537(f) (Supp.1975). To aid the court in its disposition of these cases the statute further provides for the appointment of a special assistant and authorizes the employment of additional staff members. §§ 27-2537(f)-(h) (Supp.1975).
11
See Ga.Const., Art. 5, § 1 P 12, Ga.Code Ann. § 2-3011 (1973); Ga.Code Ann. §§ 77-501, 77-511, 77-513 (1973 and Supp. 1975) (Board of Pardons and Paroles is authorized to commute sentence of death except in cases where Governor refuses to suspend that sentence).
12
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947); In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933, 34 L.Ed. 519 (1890); Wilkerson v. Utah, 99 U.S. 130, 134-135, 25 L.Ed. 345 (1879). See also McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 597, 2 L.Ed.2d 630 (1958) (plurality opinion).
13
408 U.S., at 375, 92 S.Ct., at 2796 (Burger, C. J., dissenting); Id., at 405, 92 S.Ct., at 2812 (Blackmun, J., dissenting); Id., at 414, 92 S.Ct., at 2816 (Powell, J., dissenting); Id., at 465, 92 S.Ct., at 2842 (Rehnquist, J., dissenting).
14
Id., at 257, 92 S.Ct., at 2736 (Brennan, J., concurring); Id., at 314, 92 S.Ct., at 2765 (Marshall, J., concurring).
15
Id., at 240, 92 S.Ct., at 2727 (Douglas, J., concurring); Id., at 306, 92 S.Ct., at 2760 (Stewart, J., concurring); Id., at 310, 92 S.Ct., at 2763 (White, J., concurring).
Since five Justices wrote separately in support of the judgments in Furman, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds Mr. Justice Stewart and Mr. Justice White. See n. 36, Infra.
16
408 U.S., at 316-328, 92 S.Ct., at 2765-2772 (Marshall, J., concurring).
17
This conclusion derives primarily from statements made during the debates in the various state conventions called to ratify the Federal Constitution. For example, Virginia delegate Patrick Henry objected vehemently to the lack of a provision banning "cruel and unusual punishments":
"What has distinguished our ancestors? That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany of torturing, to extort a confession of the crime." 3 J. Elliot, Debates 447-448 (1863).
A similar objection was made in the Massachusetts convention:
"They are nowhere restrained from inventing the most cruel and unheard-of punishments and annexing them to crimes; and there is no constitutional check on them, but that Racks And Gibbets may be amongst the most mild instruments of their discipline." 2 Elliot, Supra, at 111.
18
The Court remarked on the fact that the law under review "has come to us from a government of a different form and genius from ours," but it also noted that the punishments it inflicted "would have those bad attributes even if they were found in a Federal enactment and not taken from an alien source." 217 U.S., at 377, 30 S.Ct., at 553.
19
Although legislative measures adopted by the people's chosen representatives provide one important means of ascertaining contemporary values, it is evident that legislative judgments alone cannot be determinative of Eighth Amendment standards since that Amendment was intended to safeguard individuals from the abuse of legislative power. See Weems v. United States, Supra, 217 U.S. 349, 371-373, 30 S.Ct., at 544, 550-551, 54 L.Ed. 793 (1910); Furman v. Georgia, 408 U.S., at 258-269, 92 S.Ct., at 2736-2742 (Brennan, J., concurring). Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), illustrates the proposition that penal laws enacted by state legislatures may violate the Eighth Amendment because "in the light of contemporary human knowledge" they "would doubtless be universally thought to be an infliction of cruel and unusual punishment." Id., at 666, 82 S.Ct., at 1420. At the time of Robinson nine States in addition to California had criminal laws that punished addiction similar to the law declared unconstitutional in Robinson. See Brief for Appellant in Robinson v. California, O.T. 1961, No. 554, p. 15.
20
See also Furman v. Georgia, Supra, at 411, 92 S.Ct., at 2815 (Blackmun, J., dissenting):
"We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these. The temptations to cross that policy line are very great."
21
See concurring opinions of Mr. Justice Brennan and Mr. Justice Marshall, 408 U.S., at 257 and 314, 92 S.Ct. at 2736 and 2765.
22
See concurring opinions of Mr. Justice Douglas, Mr. Justice Stewart, and Mr. Justice White, Id., at 240, 306, and 310, 92 S.Ct., at 2727, 2760, and 2763.
23
Ala.H.B. 212, §§ 2-4, 6-7 (1975); Ariz.Rev.Stat.Ann. §§ 13-452 to 13-454 (Supp.1973); Ark.Stat.Ann. § 41-4706 (Supp.1975); Cal.Penal Code §§ 190.1, 209, 219 (Supp.1976); Colo.
Laws 1974, c. 52, § 4; Conn.Gen.Stat.Rev. §§ 53a-25, 53a-35(b), 53a-46a, 53a-54b (1975); Del.Code Ann. tit. 11, § 4209 (Supp.1975); Fla.Stat.Ann. §§ 782.04, 921.141 (Supp.1975-1976); Ga.Code Ann. §§ 26-3102, 27-2528, 27-2534.1, 27-2537 (Supp.1975); Idaho Code § 18-4004 (Supp.1975); Ill.Ann.Stat. c. 38, §§ 9-1, 1005-5-3, 1005-8-1A (Supp.1976-1977); Ind.Stat.Ann. § 35-13-4-1 (1975); Ky.Rev.Stat.Ann. § 507.020 (1975); La.Rev.Stat.Ann. § 14:30 (Supp.1976); Md.Ann.Code, art. 27, § 413 (Supp.1975); Miss.Code Ann. §§ 97-3-19, 97-3-21, 97-25-55, 99-17-20 (Supp.1975); Mo.Ann.Stat. §§ 559.009, 559.005 (Supp.1976); Mont.Rev.Codes Ann. § 94-5-105 (Spec.Crim.Code Supp.1976); Neb.Rev.Stat. §§ 28-401, 29-2521 to 29-2523 (1975); Nev.Rev.Stat. § 200.030 (1973); N.H.Rev.Stat.Ann. § 630:1 (1974); N.M.Stat.Ann. § 40A-29-2 (Supp.1975); N.Y. Penal Law § 60.06 (1975); N.C.Gen.Stat. § 14-17 (Supp.1975); Ohio Rev.Code Ann. §§ 2929.02-2929.04 (1975); Okla.Stat.Ann. tit. 21, §§ 701.1-701.3 (Supp.1975-1976); Pa.Laws 1974, Act No. 46; R.I.Gen.Laws Ann. § 11-23-2 (Supp.1975); S.C.Code Ann. § 16-52 (Supp.1975); Tenn.Code Ann. §§ 39-2402, 39-2406 (1975); Tex.Penal Code Ann. § 19.03(a) (1974); Utah Code Ann. §§ 76-3-206, 76-3-207, 76-5-202 (Supp.1975); Va.Code Ann. §§ 18.2-10, 18.2-31 (1976); Wash.Rev.Code §§ 9A.32.045, 9A.32.046 (Supp.1975); Wyo.Stat.Ann. § 6-54 (Supp.1975).
24
Antihijacking Act of 1974, 49 U.S.C. §§ 1472(i), (n) (1970 ed., Supp. IV).
25
In 1968, the people of Massachusetts were asked "Shall the commonwealth . . . retain the death penalty for crime?" A substantial majority of the ballots cast answered "Yes." Of 2,348,005 ballots cast, 1,159,348 voted "Yes," 730,649 voted "No," and 458,008 were blank. See Commonwealth v. O'Neal, —- Mass. ——, , and n. 1, 339 N.E.2d 676, 708, and n. 1 (1975) (Reardon, J., dissenting). A December 1972 Gallup poll indicated that 57% Of the people favored the death penalty, while a June 1973 Harris survey showed support of 59%. Vidmar & Ellsworth, Public Opinion and the Death Penalty, 26 Stan.L.Rev. 1245, 1249 n. 22 (1974). In a December 1970 referendum, the voters of Illinois also rejected the abolition of capital punishment by 1,218,791 votes to 676,302 votes. Report of the Governor's Study Commission on Capital Punishment 43 (Pa.1973).
26
The number of prisoners who received death sentences in the years from 1961 to 1972 varied from a high of 140 in 1961 to a low of 75 in 1972, with wide fluctuations in the intervening years: 103 in 1962; 93 in 1963; 106 in 1964; 86 in 1965; 118 in 1966; 85 in 1967; 102 in 1968; 97 in 1969; 127 in 1970; and 104 in 1971. Department of Justice, National Prisoner Statistics Bulletin, Capital Punishment 1971-1972, p. 20 (Dec. 1974). It has been estimated that before Furman less than 20% Of those convicted of murder were sentenced to death in those States that authorized capital punishment. See Woodson v. North Carolina, 428 U.S., at 295-296, n. 31, 96 S.Ct., at 2987, n. 31.
27
Department of Justice, National Prisoner Statistics Bulletin, Capital Punishment 1974, pp. 1, 26-27 (Nov. 1975).
28
Another purpose that has been discussed is the incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future. See People v. Anderson, 6 Cal.3d 628, 651, 100 Cal.Rptr. 152, 493 P.2d 880, 896, cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972); Commonwealth v. O'Neal, supra, 339 N.E.2d, at 685-686 (1975).
29
See H. Packer, Limits of the Criminal Sanction 43-44 (1968).
30
Lord Justice Denning, Master of the Rolls of the Court of Appeal in England, spoke to this effect before the British Royal Commission on Capital Punishment:
"Punishment is the way in which society expresses its denunciation of wrong doing: and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else . . .. The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not." Royal Commission on Capital Punishment, Minutes of Evidence, Dec. 1, 1949, p. 207 (1950).
A contemporary writer has noted more recently that opposition to capital punishment "has much more appeal when the discussion is merely academic than when the community is confronted with a crime, or a series of crimes, so gross, so heinous, so cold-blooded that anything short of death seems an inadequate response." Raspberry, Death sentence, The Washington Post, Mar. 12, 1976, p. A27, cols. 5-6.
31
See, E. g., Peck, The Deterrent Effect of Capital Punishment: Ehrlich and His Critics, 85 Yale L.J. 359 (1976); Baldus & Cole, A Comparison of the Work of Thorsten Sellin and Isaac Ehrlich on the Deterrent Effect of Capital Punishment, 85 Yale L.J. 170 (1975); Bowers & Pierce, The Illusion of Deterrence in Isaac Ehrlich's Research on Capital Punishment, 85 Yale L.J. 187 (1975); Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 Am.Econ.Rev. 397 (June 1975); Hook, The Death Sentence, in The Death Penalty in America 146 (H. Bedau ed. 1967); T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute (1959).
32
See, E. g., The Death Penalty in America, supra, at 258-332; Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932.
33
Other types of calculated murders, apparently occurring with increasing frequency, include the use of bombs or other means of indiscriminate killings, the extortion murder of hostages or kidnap victims, and the execution-style killing of witnesses to a crime.
34
We have been shown no statistics breaking down the total number of murders into the categories described above. The overall trend in the number of murders committed in the nation, however, has been upward for some time. In 1964, reported murders totaled an estimated 9,250. During the ensuing decade, the number reported increased 123%, until it totaled approximately 20,600 in 1974. In 1972, the year Furman was announced, the total estimated was 18,520. Despite a fractional decrease in 1975 as compared with 1974, the number of murders increased in the three years immediately following Furman to approximately 20,400, an increase of almost 10%. See FBI, Uniform Crime Reports, for 1964, 1972, 1974, and 1975, Preliminary Annual Release.
35
We do not address here the question whether the taking of the criminal's life is a proportionate sanction where no victim has been deprived of life for example, when capital punishment is imposed for rape, kidnaping, or armed robbery that does not result in the death of any human being.
36
This view was expressed by other Members of the Court who concurred in the judgments. See 408 U.S., at 255-257, 92 S.Ct., at 2734-2736 (Douglas, J.); Id., at 291-295, 92 S.Ct., at 2753-2755 (Brennan, J.). The dissenters viewed this concern as the basis for the Furman decision: "The decisive grievance of the opinions . . . is that the present system of discretionary sentencing in capital cases has failed to produce even-handed justice; . . . that the selection process has followed no rational pattern." Id., at 398-399, 92 S.Ct., at 2808 (Burger, C. J., dissenting).
37
The Federal Rules of Criminal Procedure require as a matter of course that a presentence report containing information about a defendant's background be prepared for use by the sentencing judge. Rule 32(c). The importance of obtaining accurate sentencing information is underscored by the Rule's direction to the sentencing court to "afford the defendant or his counsel an opportunity to comment (on the report) and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report." Rule 32(c)(3)(A).
38
Indeed, we hold elsewhere today that in capital cases it is constitutionally required that the sentencing authority have information sufficient to enable it to consider the character and individual circumstances of a defendant prior to imposition of a death sentence. See Woodson v. North Carolina, 428 U.S., at 303-305, 96 S.Ct., at 2991-2992.
39
Witherspoon v. Illinois, 391 U.S., at 519 n. 15, 88 S.Ct., at 1775 n. 15, quoting Trop v. Dulles, 356 U.S., at 101, 78 S.Ct., at 598 (plurality opinion). See also Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, P 571.
40
In other situations this Court has concluded that a jury cannot be expected to consider certain evidence before it on one issue, but not another. See, E. g. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
41
In United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the Court considered a statute that provided that if a defendant pleaded guilty, the maximum penalty would be life imprisonment, but if a defendant chose to go to trial, the maximum penalty upon conviction was death. In holding that the statute was constitutionally invalid, the Court noted:
"The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional." Id., at 581, 88 S.Ct., at 1216.
42
But see Md. Const., Art. XV, § 5: "In the trial of all criminal cases, the jury shall be the Judges of the Law, as well as of fact . . .." See also Md. Code Ann., art. 27, § 593 (1971). Maryland judges, however, typically give advisory instructions on the law to the jury. See Md. Rule 756; Wilson v. State, 239 Md. 245, 210 A.2d 824 (1965).
43
See McGautha v. California, 402 U.S., at 204-207, 91 S.Ct., at 1465-1467; Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, P 595.
44
The Model Penal Code proposes the following standards:
"(3) Aggravating Circumstances.
"(a) The murder was committed by a convict under sentence of imprisonment.
"(b) The defendant was previously convicted of another murder or of a felony involving the use or threat of violence to the person.
"(c) At the time the murder was committed the defendant also committed another murder.
"(d) The defendant knowingly created a great risk of death to many persons.
"(e) The murder was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.
"(f) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from lawful custody.
"(g) The murder was committed for pecuniary gain.
"(h) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
"(4) Mitigating Circumstances.
"(a) The defendant has no significant history of prior criminal activity.
"(b) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.
"(c) The victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.
"(d) The murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct.
"(e) The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor.
"(f) The defendant acted under duress or under the domination of another person.
"(g) At the time of the murder, the capacity of the defendant to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication.
"(h) The youth of the defendant at the time of the crime." ALI, Model Penal Code § 210.6 (Proposed Official Draft 1962).
45
As Mr. Justice Brennan noted in McGautha v. California, supra, 402 U.S., at 285-286, 91 S.Ct., at 1507 (dissenting opinion):
"(E)ven if a State's notion of wise capital sentencing policy is such that the policy cannot be implemented through a formula capable of mechanical application . . . there is no reason that it should not give some guidance to those called upon to render decision."
46
A system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.
47
In McGautha v. California, supra, this Court held that the
Due Process Clause of the Fourteenth Amendment did not require that a jury be provided with standards to guide its decision whether to recommend a sentence of life imprisonment or death or that the capital-sentencing proceeding be separated from the guilt-determination process. McGautha was not an Eighth Amendment decision, and to the extent it purported to deal with Eighth Amendment concerns, it must be read in light of the opinions in Furman v. Georgia. There the Court ruled that death sentences imposed under statutes that left juries with untrammeled discretion to impose or withhold the death penalty violated the Eighth and Fourteenth Amendments. While Furman did not overrule McGautha, it is clearly in substantial tension with a broad reading of McGautha's holding. In view of Furman, McGautha can be viewed rationally as a precedent only for the proposition that standardless jury sentencing procedures were not employed in the cases there before the Court so as to violate the Due Process Clause. We note that McGautha's assumption that it is not possible to devise standards to guide and regularize jury sentencing in capital cases has been undermined by subsequent experience. In view of that experience and the considerations set forth in the text, we adhere to Furman's determination that where the ultimate punishment of death is at issue a system of standardless jury discretion violates the Eighth and Fourteenth Amendments.
48
The text of the statute enumerating the various aggravating circumstances is set out at n. 9, Supra.
49
See Moore v. State, 233 Ga. 861, 865, 213 S.E.2d 829, 832 (1975).
50
The petitioner's argument is nothing more than a veiled contention that Furman indirectly outlawed capital punishment by placing totally unrealistic conditions on its use. In order to repair the alleged defects pointed to by the petitioner, it would be necessary to require that prosecuting authorities charge a capital offense whenever arguably there had been a capital murder and that they refuse to plea bargain with the defendant. If a jury refused to convict even though the evidence supported the charge, its verdict would have to be reversed and a verdict of guilty entered or a new trial ordered, since the discretionary act of jury nullification would not be permitted. Finally, acts of executive clemency would have to be prohibited. Such a system, of course, would be totally alien to our notions of criminal justice.
Moreover, it would be unconstitutional. Such a system in many respects would have the vices of the mandatory death penalty statutes we hold unconstitutional today in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944, and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974. The suggestion that a jury's verdict of acquittal could be overturned and a defendant retried would run afoul of the Sixth Amendment jury-trial guarantee and the Double Jeopardy Clause of the Fifth Amendment. In the federal system it also would be unconstitutional to prohibit a President from deciding, as an act of executive clemency, to reprieve one sentenced to death. U.S.Const., Art. II, § 2.
51
In light of the limited grant of certiorari, see Supra, at 162, we review the "vagueness" and "overbreadth" of the statutory aggravating circumstances only to consider whether their imprecision renders this capital-sentencing system invalid under the Eighth and Fourteenth Amendments because it is incapable of imposing capital punishment other than by arbitrariness or caprice.
52
In the course of interpreting Florida's new capital-sentencing statute, the Supreme Court of Florida has ruled that the phrase "especially heinous, atrocious or cruel" means a "conscienceless or pitiless crime which is unnecessarily torturous to the victim." State v. Dixon, 283 So.2d 1, 9 (1973). See Proffitt v. Florida, 428 U.S. 242, at 255-256, 96 S.Ct. 2960, at 2967-2968, 49 L.Ed.2d 913.
53
Two other reported cases indicate that juries have found aggravating circumstances based on § 27-2534.1(b)(7). In both cases a separate statutory aggravating circumstance was also found, and the Supreme Court of Georgia did not explicitly rely on the finding of the seventh circumstance when it upheld the death sentence. See Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975) (State Supreme Court upheld finding that defendant committed two other capital felonies kidnaping and armed robbery in the course of the murder, § 27-2534.1(b)(2); jury also found that the murder was committed for money, § 27-2534.1(b)(4); and that a great risk of death to bystanders was created, § 27-2534.1(b)(3)); Floyd v. State, 233 Ga. 280, 210 S.E.2d 810 (1974) (found to have committed a capital felony armed robbery in the course of the murder, § 27-2534.1(b)(2)).
54
The petitioner also attacks § 25-2534.1(b)(7) as vague. As we have noted in answering his overbreadth argument concerning this section, however, the state court has not given a broad reading to the scope of this provision, and there is no reason to think that juries will not be able to understand it. See n. 51, Supra; Proffitt v. Florida, 428 U.S., at 255-256, 96 S.Ct., at 2967-2968.
55
The petitioner also objects to the last part of § 27-2534.1(b)(3) which requires that the great risk be created "by means of a weapon or device which would normally be hazardous to the lives of more than one person." While the state court has not focused on this section, it seems reasonable to assume that if a great risk in fact is created, it will be likely that a weapon or device normally hazardous to more than one person will have created it.
56
The court is required to specify in its opinion the similar cases which it took into consideration. § 27-2537(e) (Supp.1975). Special provision is made for staff to enable the court to compile data relevant to its consideration of the sentence's validity. §§ 27-2537(f)-(h) (Supp.1975). See generally Supra, at 166-168.
The petitioner claims that this procedure has resulted in an inadequate basis for measuring the proportionality of sentences. First, he notes that nonappealed capital convictions where a life sentence is imposed and cases involving homicides where a capital conviction is not obtained are not included in the group of cases which the Supreme Court of Georgia uses for comparative purposes. The Georgia court has the authority to consider such cases, see Ross v. State, 233 Ga. 361, 365-366, 211 S.E.2d 356, 359 (1974), and it does consider appealed murder cases where a life sentence has been imposed. We do not think that the petitioner's argument establishes that the Georgia court's review process is ineffective. The petitioner further complains about the Georgia court's current practice of using some pre-Furman cases in its comparative examination. This practice was necessary at the inception of the new procedure in the absence of any post-Furman capital cases available for comparison. It is not unconstitutional.
1
Section 26-1101 provides as follows:
"Murder.
(a) A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.
"(b) A person also commits the crime of murder when in the commission of a felony he causes the death of another human being, irrespective of malice.
"(c) A person convicted of murder shall be punished by death or by imprisonment for life."
The death penalty may also be imposed for kidnaping, Ga.Code Ann. § 26-1311; armed robbery, § 26-1902; rape, § 26-2001; treason, § 26-2201; and aircraft hijacking, § 26-3301.
2
Section 26-3102 (Supp. 1975) provides:
"Capital offenses; jury verdict and sentence.
"Where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed. Where a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death. Where a sentence of death is not recommended by the jury, the court shall sentence the defendant to imprisonment as provided by law. Unless the jury trying the case makes a finding of at least one statutory aggravating circumstance and recommends the death sentence in its verdict, the court shall not sentence the defendant to death, provided that no such finding of statutory aggravating circumstance shall be necessary in offenses of treason or aircraft hijacking. The provisions of this section shall not affect a sentence when the
case is tried without a jury or when the judge accepts a plea of guilty."
Georgia Laws, 1973, Act No. 74, p. 162, provides:
"At the conclusion of all felony cases heard by a jury, and after argument of counsel and proper charge from the court, the jury shall retire to consider a verdict of guilty or not guilty without any consideration of punishment. In non-jury felony cases, the judge shall likewise first consider a finding of guilty or not guilty without any consideration of punishment. Where the jury or judge returns a verdict or finding of guilty, the court shall resume the trial and conduct a pre-sentence hearing before the jury or judge at which time the only issue shall be the determination of punishment to be imposed. In such hearing, subject to the laws of evidence, the jury or judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of Nolo contendere of the defendant, or the absence of any such prior criminal convictions and pleas; provided, however, that only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. The jury or judge shall also hear argument by the defendant or his counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed. The prosecuting attorney shall open and the defendant shall conclude the argument to the jury or judge. Upon the conclusion of the evidence and arguments, the judge shall give the jury appropriate instructions and the jury shall retire to determine the punishment to be imposed. In cases in which the death penalty may be imposed by a jury or judge sitting without a jury, the additional procedure provided in Code section 27-2534.1 shall be followed. The jury, or the judge in cases tried by a judge, shall fix a sentence within the limits prescribed by law. The judge shall impose the sentence fixed by the jury or judge, as provided by law. If the jury cannot, within a reasonable time, agree to the punishment, the judge shall impose sentence within the limits of the law; provided, however, that the judge shall in no instance impose the death penalty when, in cases tried by a jury, the jury cannot agree upon the punishment. If the trial court is reversed on appeal because of error only in the pre-sentence hearing, the new trial which may be ordered shall apply only to the issue of punishment."
3
Section 27-2537(g) provides:
"The court shall be authorized to employ an appropriate staff and such methods to compile such data as are deemed by the Chief Justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence. . . ."
4
The court said:
"And, I charge you that our law provides, in connection with the offense of murder the following. A person commits murder when he unlawfully and with malice aforethought, either express or implied causes the death of another human being.
"Express malice is that deliberate intention, unlawfully to take away the life of a fellow creature which is manifested by external circumstances, capable of proof.
"Malice shall be implied where no considerable provocation appears and where all of the circumstances of the killing show an abandoned and malignant heart.
"Section B of this Code Section, our law provides that a person also commits the crime of murder when in the commission of a felony he causes the death of another human being irrespective of malice.
"Now, then, I charge you that if you find and believe beyond a reasonable doubt that the defendant did commit the homicide in the two counts alleged in this indictment, at the time he was engaged in the commission of some other felony, you would be authorized to find him guilty of murder.
"In this connection, I charge you that in order for a homicide to have been done in the perpetration of a felony, there must be some connection between the felony and the homicide. The homicide must have been done in pursuance of the unlawful act not collateral to it. It is not enough that the homicide occurred soon or presently after the felony was attempted or committed, there must be such a legal relationship between the homicide and the felony that you find that the homicide occurred by reason of and a part of the felony or that it occurred before the felony was at an end, so that the felony had a legal relationship to the homicide and was concurrent with it in part at least, and a part of it in an actual and material sense. A homicide is committed in the perpetration of a felony when it is committed by the accused while he is engaged in the performance of any act required for the full execution of such felony.
"I charge you that if you find and believe beyond a reasonable doubt that the homicide alleged in this indictment was caused by
the defendant while he, the said accused was in the commission of a felony as I have just given you in this charge, you would be authorized to convict the defendant of murder.
"And this you would be authorized to do whether the defendant intended to kill the deceased or not. A homicide, although unintended, if committed by the accused at the time he is engaged in the commission of some other felony constitutes murder.
"In order for a killing to have been done in perpetration or attempted perpetration of a felony, or of a particular felony, there must be some connection as I previously charged you between the felony and the homicide.
"Before you would be authorized to find the defendant guilty of the offense of murder, you must find and believe beyond a reasonable doubt, that the defendant did, with malice aforethought either express or implied cause the deaths of (Simmons or Moore) or you must find and believe beyond a reasonable doubt that the defendant, while in the commission of a felony caused the death of these two victims just named.
"I charge you, that if you find and believe that, at any time prior to the date this indictment was returned into this court that the defendant did, in the county of Gwinnett, State of Georgia, with malice aforethought kill and murder the two men just named in the way and manner set forth in the indictment or that the defendant caused the deaths of these two men in the way and manner set forth in the indictment, while he, the said accused was in the commission of a felony, then in either event, you would be authorized to find the defendant guilty of murder."
5
In a subsequently decided robbery-murder case, the Georgia Supreme Court had the following to say about the same "similar cases" referred to in this case:
"We have compared the evidence and sentence in this case with other similar cases and conclude the sentence of death is not excessive or disproportionate to the penalty imposed in those cases. Those similar cases we considered in reviewing the case are: Lingo v. State, 226 Ga. 496, 175 S.E.2d 657; Johnson v. State, 226 Ga. 511, 175 S.E.2d 840; Pass v. State, 227 Ga. 730, 182 S.E.2d 779; Watson v. State, 229 Ga. 787, 194 S.E.2d 407; Scott v. State, 230 Ga. 413, 197 S.E.2d 338; Kramer v. State, 230 Ga. 855, 199 S.E.2d 805, and Gregg v. State, 233 Ga. 117, 210 S.E.2d 659.
"In each of the comparison cases cited, the records show that the accused was found guilty of murder of the victim of the robbery or burglary committed in the course of such robbery or burglary. In each of those cases, the jury imposed the sentence of death. In Pass v. State, supra, the murder took place in the victim's home, as occurred in the case under consideration.
"We find that the sentence of death in this case is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Code Ann. § 27-2537(c)(3). Notwithstanding the fact that there have been cases in which robbery victims were murdered and the juries imposed life sentences (see Appendix), the cited cases show that juries faced with similar factual situations have imposed death sentences. Compare Coley v. State, 231 Ga. 829, 835, 204 S.E.2d 612, supra. Thus the sentence here was not 'wantonly and freakishly imposed' (see above)." Moore v. State, 233 Ga. 861, 865-866, 213 S.E.2d 829, 833 (1975).
In another case decided after the instant case the Georgia Supreme Court stated:
"The cases reviewed included all murder cases coming to this court since January 1, 1970. All kidnapping cases were likewise reviewed. The comparison involved a search for similarities in addition to the similarity of offense charged and sentence imposed.
"All of the murder cases selected for comparison involved murders wherein all of the witnesses were killed or an attempt was made to kill all of the witnesses, and kidnapping cases where the victim was killed or seriously injured.
"The cases indicate that, except in some special circumstance such as a juvenile or an accomplice driver of a get-away vehicle where the murder was committed and trial held at a time when the death penalty statute was effective, juries generally throughout the state have imposed the death penalty. The death penalty has also been imposed when the kidnap victim has been mistreated or seriously injured. In this case the victim was murdered.
"The cold blooded and callous nature of the offenses in this case are the types condemned by death in other cases. This defendant's death sentences for murder and kidnapping are not excessive or disproportionate to the penalty imposed in similar cases. Using the standards prescribed for our review by the statute, we conclude that the sentences of death imposed in this case for murder and kidnapping were not imposed under the influence of passion, prejudice or any other arbitrary factor." Jarrell v. State, 234 Ga. 410, 425-426, 216 S.E.2d 258, 270 (1975).
6
See Furman v. Georgia, 408 U.S., at 240, 92 S.Ct., at 2727 (Douglas, J., concurring).
7
See Id., at 306, 92 S.Ct., at 2760 (Stewart, J., concurring).
8
See Id., at 310, 92 S.Ct., at 2763 (White, J., concurring).
9
Petitioner also argues that the differences between murder for which the death penalty may be imposed and manslaughter for which it may not be imposed are so difficult to define and the jury's ability to disobey the trial judge's instructions so unfettered that juries will use the guilt-determination phase of a trial arbitrarily to convict some of a capital offense while convicting similarly situated individuals only of noncapital offenses. I believe this argument is enormously overstated. However, since the jury has discretion not to impose the death penalty at the sentencing phase of a case in Georgia, the problem of offense definition and jury nullification loses virtually all its significance in this case.
10
The factor relevant to this case is that the "murder . . . was committed while the offender was engaged in the commission of another capital felony." The State in its brief refers to this type of murder as "witness-elimination" murder. Apparently the State of Georgia wishes to supply a substantial incentive to those engaged in robbery to leave their guns at home and to persuade their co-conspirators to do the same in the hope that fewer victims of robberies will be killed.
11
Petitioner states several times without citation that the only cases considered by the Georgia Supreme Court are those in which an appeal was taken either from a sentence of death or life imprisonment. This view finds no support in the language of the relevant statutes. Moore v. State, 233 Ga., at 863-864, 213 S.E.2d, at 832.
1
Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion of Warren, C. J.).
2
Quoting T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute 15 (1959).
3
Novak v. Beto, 453 F.2d 661, 672 (CA5 1971) (Tuttle, J., concurring in part and dissenting in part).
4
Tao, Beyond Furman v. Georgia: The Need for a Morally Based Decision on Capital Punishment, 51 Notre Dame Law. 722, 736 (1976).
5
Trop v. Dulles, 356 U.S., at 99, 78 S.Ct., at 597 (plurality opinion of Warren, C. J.).
6
A. Camus, Reflections on the Guillotine 5-6 (Fridtjof-Karla Pub. 1960).
1
Sarat & Vidmar, Public Opinion, The Death Penalty, and the Eighth Amendment: Testing the Marshall Hypothesis, 1976 Wis.L.Rev. 171.
2
See E. g., T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute (1959).
3
United Nations, Department of Economic and Social Affairs, Capital Punishment, pt. II, P 159, p. 123 (1968).
4
I. Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death (Working Paper No. 18, National Bureau of Economic Research, Nov. 1973); Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 Am.Econ.Rev. 397 (June 1975).
5
Id., at 409.
6
The variables other than execution risk included probability of arrest, probability of conviction given arrest, national aggregate measures of the percentage of the population between age 14 and 24, the unemployment rate, the labor force participation rate, and estimated per capita income.
7
Id., at 398, 414.
8
See Passell & Taylor, The Deterrent Effect of Capital Punishment: Another View (unpublished Columbia University Discussion Paper 74-7509, Mar. 1975), reproduced in Brief for Petitioner App. E in Jurek v. Texas, O.T. 1975, No. 75-5844; Passell, The Deterrent Effect of the Death Penalty: A Statistical Test, 28 Stan.L.Rev. 61 (1975); Baldus & Cole, A Comparison of the Work of Thorsten Sellin & Isaac Ehrlich on the Deterrent Effect of Capital Punishment, 85 Yale L.J. 170 (1975); Bowers & Pierce, The Illusion of Deterrence in Isaac Ehrlich's Research on Capital Punishment, 85 Yale L.J. 187 (1975); Peck, The Deterrent Effect of Capital Punishment: Ehrlich and His Critics, 85 Yale L.J. 359 (1976). See also Ehrlich, Deterrence: Evidence and Inference, 85 Yale L.J. 209 (1975); Ehrlich, Rejoinder, 85 Yale L.J. 368 (1976). In addition to the items discussed in text, criticism has been directed at the quality of Ehrlich's data, his choice of explanatory variables, his failure to account for the interdependence of those variables, and his assumptions as to the mathematical form of the relationship between the homicide rate and the explanatory variables.
9
See Baldus & Cole, Supra, at 175-177.
10
Bowers & Pierce, Suupra, n. 8, at 197-198. See also Passell & Taylor, Supra, n. 8, at 2-66 2-68.
11
See Bowers & Pierce, Supra, n. 8, at 197-198; Baldus & Cole, Supra, n. 8, at 181, 183-185; Peck, Supra, n. 8, at 366-367.
12
Passell, Supra, n. 8.
13
See also Bailey, Murder and Capital Punishment: Some Further Evidence, 45 Am.J.Orthopsychiatry 669 (1975); W. Bowers, Executions in America 121-163 (1974).
14
In Furman, I considered several additional purposes arguably served by the death penalty. 408 U.S., at 314, 342, 355-358, 92 S.Ct., at 2765, 2778, 2785-2787. The only additional purpose mentioned in the opinions in these cases is specific deterrence preventing the murderer from committing another crime. Surely life imprisonment and, if necessary, solitary confinement would fully accomplish this purpose. Accord, Commonwealth v. O'Neal, —- Mass. ——, ——, 339 N.E.2d 676, 685 (1975); People v. Anderson, 6 Cal.3d 628, 651, 100 Cal.Rptr. 152, 168, 493 P.2d 880, 896 (1972), cert. denied 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972).
15
See, E. g., H. Hart, Punishment and Responsibility 8-10, 71-83 (1968); H. Packer, Limits of the Criminal Sanction 38-39, 66 (1968).
16
See Commonwealth v. O'Neal, supra, —- Mass., at ——, 339 N.E.2d, at 687; Bowers, Supra, n. 13, at 335; Sellin, Supra, n. 2, at 79.
17
See Hart, Supra, n. 15, at 72, 74-75, 234-235; Packer, Supra, n. 15, at 37-39.
18
Mr. Justice White's view of retribution as a justification for the death penalty is not altogether clear. "The widespread reenactment of the death penalty," he states at one point, "answers any claims that life imprisonment is adequate punishment to satisfy the need for reprobation or retribution." Roberts v. Louisiana, 428 U.S., at 354, 96 S.Ct., at 3016 (White, J., dissenting). But Mr. Justice White later states: "It will not do to denigrate these legislative judgments as some form of vestigial savagery or as purely retributive in motivation; for they are solemn judgments, reasonably based, that imposition of the death penalty will save the lives of innocent persons." Id., at 355, 96 S.Ct., at 3017.
19
See Commonwealth v. O'Neal, supra, —- Mass., at ——, 339 N.E.2d, at 687; People v. Anderson, 6 Cal.3d, at 651, 100 Cal.Rptr., at 168, 493 P.2d, at 896.
| 01
|
428 U.S. 242
96 S.Ct. 2960
49 L.Ed.2d 913
Charles William PROFFITT, Petitioner,v.State of FLORIDA.
No. 75-5706.
Argued March 31, 1976.
Decided July 2, 1976.
Stay Granted July 22, 1976.
See 428 U.S. 1301, 96 S.Ct. 3235.
Rehearing Denied Oct. 4, 1976.
See 429 U.S. 875, 97 S.Ct. 198.
Syllabus
Petitioner, whose first-degree murder conviction and death sentence were affirmed by the Florida Supreme Court, attacks the constitutionality of the Florida capital-sentencing procedure, that was enacted in response to Furnam v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Under the new statute, the trial judge (who is the sentencing authority) must weigh eight statutory aggravating factors against seven statutory mitigating factors to determine whether the death penalty should be imposed, thus requiring him to focus on the circumstances of the crime and the character of the individual defendant. The Florida system resembles the Georgia system upheld in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, except for the basic difference that in Florida the sentence is determined by the trial judge rather than by the jury, which has an advisory role with respect to the sentencing phase of the trial. Held: The judgment is affirmed. Pp. 251-260; 260-261; 261.
315 So.2d 461, affirmed.
Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS, concluded that:
1
1. The imposition of the death penalty is not Per se cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Gregg, ante, at 168-187, 96 S.Ct., at 168-187. P. 247.
2
2. On its face, the Florida procedures for imposition of the death penalty satisfy the constitutional deficiencies identified in Furman, supra. Florida trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life, and their decisions are reviewed to ensure that they comport with other sentences imposed under similar circumstances. Petitioner's contentions that the new Florida procedures remain arbitrary and capricious lack merit. Pp. 251-259.
3
(a) The argument that the Florida system is constitutionally invalid because it allows discretion to be exercised at each stage of the criminal proceeding fundamentally misinterprets Furman. Gregg, ante, at 199, 96 S.Ct., at 2937. P. 254.
4
(b) The aggravating circumstances authorizing the death penalty if the crime is "especially heinous, atrocious, or cruel," or if "(t)he defendant knowingly created a great risk of death to many persons," as construed by the Florida Supreme Court, provide adequate guidance to those involved in the sentencing process and as thus construed are not overly broad. Pp. 255-256.
5
(c) Petitioner's argument that the imprecision of the mitigating circumstances makes them incapable of determination by a judge or jury and other contentions in a similar vein raise questions about line-drawing evaluations that do not differ from factors that juries and judges traditionally consider. The Florida statute gives clear and precise directions to judge and jury to enable them to weigh aggravating circumstances against mitigating ones. P. 257-258.
6
(d) Contrary to petitioner's contention, the State Supreme Court's review role is neither ineffective nor arbitrary, as evidenced by the careful procedures it has followed in assessing the imposition of death sentences, over a third of which that court has vacated. Pp. 258-259.
7
Mr. Justice WHITE, joined by THE CHIEF JUSTICE and Mr. Justice REHNQUIST, concluded that under the Florida law the sentencing judge is Required to impose the death penalty on all first-degree murderers as to whom the statutory aggravating factors outweigh the mitigating factors, and as to those categories the penalty will not be freakishly or rarely, but will be regularly, imposed; and therefore the Florida scheme does not run afoul of the Court's holding in Furman. Petitioner's contentions about prosecutorial discretion and his argument that the death penalty may never be imposed under any circumstances consistent with the Eighth Amendment are without substance. See, Gregg v. Georgia, ante, at 224-225, 96 S.Ct., at 2948-2949 (White, J., concurring in judgment) and Roberts v. Louisiana, 428 U.S. 325, 348-350, 350-356, 96 S.Ct. 3001, 3013-3014, 3014-3017, 49 L.Ed.2d 974 (White, J., dissenting). P. 260-261.
8
Mr. Justice BLACKMUN concurred in the judgment. See Furman v. Georgia, 408 U.S. 238, 405-414, 92 S.Ct. 2726, 2811-16, 33 L.Ed.2d 346 (Blackmun, J., dissenting), and Id., at 375, 414, and 465, 92 S.Ct., at 2796, 2816, and 2841. P. 261.
9
Clinn A. Curtis, Lake Wales, Fla., for petitioner.
10
Robert L. Shevin, Atty. Gen., Tallahassee, Fla., for respondent.
11
By special leave of Court William E. James, Los Angeles, Cal., for State of California, as amicus curiae, and Sol. Gen. Robert H. Bork, Washington, D. C., for the U. S., as amicus curiae.
12
Judgment of the Court, and opinion of Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS, announced by Mr. Justice POWELL.
13
The issue presented by this case is whether the imposition of the sentence of death for the crime of murder under the law of Florida violates the Eighth and Fourteenth Amendments.
14
* The petitioner, Charles William Proffitt, was tried, found guilty, and sentenced to death for the first-degree murder of Joel Medgebow. The circumstances surrounding the murder were testified to by the decedent's wife, who was present at the time it was committed. On July 10, 1973, Mrs. Medgebow awakened around 5 a. m. in the bedroom of her apartment to find her husband sitting up in bed, moaning. He was holding what she took to be a ruler.1 Just then a third person jumped up, hit her several times with his fist, knocked her to the floor, and ran out of the house. It soon appeared that Medgebow had been fatally stabbed with a butcher knife. Mrs. Medgebow was not able to identify the attacker, although she was able to give a description of him.2
15
The petitioner's wife testified that on the night before the murder the petitioner had gone to work dressed in a white shirt and gray pants, and that he had returned at about 5:15 a. m. dressed in the same clothing but without shoes. She said that after a short conversation the petitioner had packed his clothes and departed. A young woman boarder, who overheard parts of the petitioner's conversation with his wife, testified that the petitioner had told his wife that he had stabbed and killed a man with a butcher knife while he was burglarizing a place, and that he had beaten a woman. One of the petitioner's coworkers testified that they had been drinking together until 3:30 or 3:45 on the morning of the murder and that the petitioner had then driven him home. He said that the petitioner at this time was wearing gray pants and a white shirt.
16
The jury found the defendant guilty as charged. Subsequently, as provided by Florida law, a separate hearing was held to determine whether the petitioner should be sentenced to death or to life imprisonment. Under the state law that decision turned on whether certain statutory aggravating circumstances surrounding the crime outweighed any statutory mitigating circumstances found to exist.3 At that hearing it was shown that the petitioner had one prior conviction, a 1967 charge of breaking and entering. The State also introduced the testimony of the physician (Dr. Crumbley) at the jail where the petitioner had been held pending trial. He testified that the petitioner had come to him as a physician, and told him that he was concerned that he would harm other people in the future, that he had had an uncontrollable desire to kill that had already resulted in his killing one man, that this desire was building up again, and that he wanted psychiatric help so he would not kill again. Dr. Crumbley also testified that, in his opinion, the petitioner was dangerous and would be a danger to his fellow inmates if imprisoned, but that his condition could be treated successfully.
17
The jury returned an advisory verdict recommending the sentence of death. The trial judge ordered an independent psychiatric evaluation of the petitioner, the results of which indicated that the petitioner was not, then or at the time of the murder, mentally impaired. The judge then sentenced the petitioner to death. In his written findings supporting the sentence, the judge found as aggravating circumstances that (1) the murder was premeditated and occurred in the course of a felony (burglary); (2) the petitioner has the propensity to commit murder; (3) the murder was especially heinous, atrocious, and cruel; and (4) the petitioner knowingly, through his intentional act, created a great risk of serious bodily harm and death to many persons. The judge also found specifically that none of the statutory mitigating circumstances existed. The Supreme Court of Florida affirmed. 315 So.2d 461 (1975). We granted certiorari, 423 U.S. 1082, 96 S.Ct. 1090, 47 L.Ed.2d 94 (1976), to consider whether the imposition of the death sentence in this case constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.
II
18
The petitioner argues that the imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. We reject this argument for the reasons stated today in Gregg v. Georgia, 428 U.S. 153, 168-187, 96 S.Ct. 2909, 2922-2932, 49 L.Ed.2d 859.
III
A.
19
In response to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Florida Legislature adopted new statutes that authorize the imposition of the death penalty on those convicted of first-degree murder. Fla.Stat.Ann. § 782.04(1)(Supp. 1976-1977).4 At the same time Florida adopted a new capital-sentencing procedure, patterned in large part on the Model Penal Code. See § 921.141 (Supp.1976-1977).5 Under the new statute, if a defendant is found guilty of a capital offense, a separate evidentiary hearing is held before the trial judge and jury to determine his sentence. Evidence may be presented on any matter the judge deems relevant to sentencing and must include matters relating to certain legislatively specified aggravating and mitigating circumstances. Both the prosecution and the defense may present argument on whether the death penalty shall be imposed.
20
At the conclusion of the hearing the jury is directed to consider "(w)hether sufficient mitigating circumstances exist . . . which outweigh the aggravating circumstances found to exist; and . . . (b)ased on these considerations, whether the defendant should be sentenced to life (imprisonment) or death." §§ 921.141(2)(b) and (c)(Supp.1976-1977).6 The jury's verdict is determined by majority vote. It is only advisory; the actual sentence is determined by the trial judge. The Florida Supreme Court has stated, however, that "(i)n order to sustain a sentence of deatfollowing a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So.2d 908, 910 (1975). Accord, Thompson v. State, 328 So.2d 1, 5 (1976). Cf. Spinkellink v. State, 313 So.2d 666, 671 (1975).7[n]
21
The trial judge is also directed to weigh the statutory aggravating and mitigating circumstances when he determines the sentence to be imposed on a defendant. The statute requires that if the trial court imposes a sentence of death, "it shall set forth in writing its findings upon which the sentence of death is based as to the facts: (a) (t)hat sufficient (statutory) aggravating circumstances exist . . . and (b) (t)hat there are insufficient (statutory) mitigating circumstances . . . to outweigh the aggravating circumstances." § 921.141(3) (Supp.1976-1977).8
22
The statute provides for automatic review by the Supreme Court of Florida of all cases in which a death sentence has been imposed. § 921.141(4) (Supp.1976-1977). The law differs from that of Georgia in that it does not require the court to conduct any specific form of review. Since, however, the trial judge must justify the imposition of a death sentence with written findings, meaningful appellate review of each such sentence is made possible and the Supreme Court of Florida like its Georgia counterpart considers its function to be to "(guarantee) that the (aggravating and mitigating) reasons present in one case will reach a similar result to that reached under similar circumstances in another case. . . . If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great." State v. Dixon, 283 So.2d 1, 10 (1973).
23
On their face these procedures, like those used in Georgia, appear to meet the constitutional deficiencies identified in Furman. The sentencing authority in Florida, the trial judge, is directed to weigh eight aggravating factors against seven mitigating factors to determine whether the death penalty shall be imposed. This determination requires the trial judge to focus on the circumstances of the crime and the character of the individual defendant. He must Inter alia, consider whether the defendant has a prior criminal record, whether the defendant acted under duress or under the influence of extreme mental or emotional disturbance, whether the defendant's role in the crime was that of a minor accomplice, and whether the defendant's youth argues in favor of a more lenient sentence than might otherwise be imposed. The trial judge must also determine whether the crime was committed in the course of one of several enumerated felonies, whether it was committed for pecuniary gain, whether it was committed to assist in an escape from custody or to prevent a lawful arrest, and whether the crime was especially heinous, atrocious, or cruel. To answer these questions, which are not unlike those considered by a Georgia sentencing jury, see Gregg v. Georgia, 428 U.S., at 197, 96 S.Ct., at 2936, the sentencing judge must focus on the individual circumstances of each homicide and each defendant.
24
The basic difference between the Florida system and the Georgia system is that in Florida the sentence is determined by the trial judge rather than by the jury.9 This Court has pointed out that jury sentencing in a capital case can perform an important societal function, Witherspoon v. Illinois, 391 U.S. 510, 519 n. 15, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968), but it has never suggested that jury sentencing is constitutionally required. And it would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogous cases.10
25
The Florida capital-sentencing procedures thus seek to assure that the death penalty will not be imposed in an arbrary or capricious manner. Moreover, to the extent that any risk to the contrary exists, it is minimized by Florida's appellate review system, under which the evidence of the aggravating and mitigating circumstances is reviewed and reweighed by the Supreme Court of Florida "to determine independently whether the imposition of the ultimate penalty is warranted." Songer v. State, 322 So.2d 481, 484 (1975). See also Sullivan v. State, 303 So.2d 632, 637 (1974). The Supreme Court of Florida, like that of Georgia, has not hesitated to vacate a death sentence when it has determined that the sentence should not have been imposed. Indeed, it has vacated 8 of the 21 death sentences that it has reviewed to date. See Taylor v. State, 294 So.2d 648 (1974); Lamadline v. State, 303 So.2d 17 (1974); Slater v. State, 316 So.2d 539 (1975); Swan v. State, 322 So.2d 485 (1975); Tedder v. State, 322 So.2d 908 (1975); Halliwell v. State, 323 So.2d 557 (1975); Thompson v. State, 328 So.2d 1 (1976); Messer v. State, 330 So.2d 137 (1976).
26
Under Florida's capital-sentencing procedures, in sum, trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life. Moreover, their decisions are reviewed to ensure that they are consistent with other sentences imposed in similar circumstances. Thus, in Florida, as in Georgia, it is no longer true that there is " 'no meaningful basis for distinguishing the few cases in which (the death penalty) is imposed from the many cases in which it is not.' " Gregg v. Georgia, 428 U.S., at 188, 96 S.Ct., at 2932, quoting Furman v. Georgia, 408 U.S., at 313, 92 S.Ct., at 2764 (White, J, concurring). On its face the Florida system thus satisfies the constitutional deficiencies identified in Furman.
B
27
As in Gregg, the petitioner contends, however, that, while perhaps facially acceptable, the new sentencing procedures in actual effect are merely cosmetic, and that arbitrariness and caprice still pervade the system under which Florida imposes the death penalty.
28
(1)
29
The petitioner first argues that arbitrariness is inherent in the Florida criminal justice system because it allows discretion to be exercised at each stage of a criminal proceeding the prosecutor's decision whether to charge a capital offense in the first place, his decision whether to accept a plea to a lesser offense, the jury's consideration of lesser included offenses, and, after conviction and unsuccessful appeal, the Executive's decision whether to commute a death sentence. As we noted in Gregg, this argument is based on a fundamental misinterpretation of Furman, and we reject it for the reasons expressed in Gregg. See 428 U.S., at 199, 96 S.Ct., at 2937.
30
(2)
31
The petitioner next argues that the new Florida sentencing procedures in reality do not eliminate the arbitrary infliction of death that was condemned in Furman. Basically he contends that the statutory aggravating and mitigating circumstances are vague and overbroad,11 and that the statute gives no guidance as to how the mitigating and aggravating circumstances should be weighed in any specific case.
(a)
32
Initially the petitioner asserts that the enumerated aggravating and mitigating circumstances are so vague and so broad that virtually "any capital defendant becomes a candidate for the death penalty . . . ." In particular, the petitioner attacks the eighth and third statutory aggravating circumstances, which authorize the death penalty to be imposed if the crime is "especially heinous, atrocious, or cruel," or if "(t)he defendant knowingly created a great risk of death to many persons." §§ 921.141(5)(h), (c) (Supp.1976-1977). These provisions must be considered as they have been construed by the Supreme Court of Florida.
33
That court has recognized that while it is arguable "that all killings are atrocious, . . . (s)till, we believe that the Legislature intended something 'especially' heinous, atrocious or cruel when it authorized the death penalty for first degree murder." Tedder v. State, 322 So.2d, at 910. As a consequence, the court has indicated that the eighth statutory provision is directed only at "the conscienceless or pitiless crime which is unnecessarily torturous to the victim." State v. Dixon, 283 So.2d, at 9. See also Alford v. State, 307 So.2d 433, 445 (1975); Halliwell v. State, supra, 323 So.2d, at 561.12 We can say that the provision, as so construed, provides inadequate guidance to those charged with the duty of recommending or imposing sentences in capital cases. See Gregg v. Georgia, ante, 428 U.S., at 200-203, 96 S.Ct., at 2938-2939.
34
In the only case, except for the instant case, in which the third aggravating factor "(t)he defendant knowingly created a great risk of death to many persons" was found, Alvord v. State, 322 So.2d 533 (1975), the State Supreme Court held that the defendant created a great risk of death because he "obviously murdered two of the victims in order to avoid a surviving witness to the (first) murder." Id., at 540.13 As construed by the Supreme Court of Florida these provisions are not impermissibly vague.14
(b)
35
The petitioner next attacks the imprecision of the mitigating circumstances. He argues that whether a defendant acted "under the influence of extreme mental or emotional disturbance," whether a defendant's capacity "to conform his conduct to the requirements of law was substantially impaired," or whether a defendant's participation as an accomplice in a capital felony was "relatively minor," are questions beyond the capacity of a jury or judge to determine. See §§ 921.141(6)(b), (f), (d) (Supp.1976-1977).
36
He also argues that neither a jury nor a judge is capable of deciding how to weigh a defendant's age or determining whether he had a "significant history of prior criminal activity." See §§ 921.141(6)(g), (a) (Supp.1976-1977). In a similar vein the petitioner argues that it is not possible to make a rational determination whether there are "sufficient" aggravating circumstances that are not outweighed by the mitigating circumstances, since the state law assigns no specific weight to any of the various circumstances to be considered. See § 921.141 (Supp.1976-1977).
37
While these questions and decisions may be hard, they require no more line-drawing than is commonly required of a factfinder in a lawsuit. For example, juries have traditionally evaluated the validity of defenses such as insanity or reduced capacity, both of which involve the same considerations as some of the above-mentioned mitigating circumstances. While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman are satisfied when the sentencing authority's discretion is guided and channeled by requiring examination of specific factors that argue in favor of or agast imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.
38
The directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones. As a result, the trial court's sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.
39
(c)
40
Finally, the Florida statute has a provision designed to assure that the death penalty will not be imposed on a capriciously selected group of convicted defendants. The Supreme Court of Florida reviews each death sentence to ensure that similar results are reached in similar cases.15
41
Nonetheless the petitioner attacks the Florida appellate review process because the role of the Supreme Court of Florida in reviewing death sentences is necessarily subjective and unpredictable. While it may be true that that court has not chosen to formulate a rigid objective test as its standard of review for all cases, it does not follow that the appellate review process is ineffective or arbitrary. In fact, it is apparent that the Florida court has undertaken responsibly to perform its function of death sentence review with a maximum of rationality and consistency. For example, it has several times compared the circumstances of a case under review with those of previous cases in which it has assessed the imposition of death sentences. See, e. g., Alford v. State, 307 So.2d, at 445; Alvord v. State, 322 So.2d, at 540-541. By following this procedure the Florida court has in effect adopted the type of proportionality review mandated by the Georgia statute. Cf. Gregg v. Georgia, 428 U.S., at 204-206, 96 S.Ct., at 2939-2941. And any suggestion that the Florida court gages in only cursory or rubber-stamp review of death penalty cases is totally controverted by the fact that it has vacated over one-third of the death sentences that have come before it. See supra, at 253.16
IV
42
Florida, like Georgia, has responded to Furman by enacting legislation that passes constitutional muster. That legislation provides that after a person is convicted of first-degree murder, there shall be an informed, focused, guided, and objective inquiry into the question whether he should be sentenced to death. If a death sentence is imposed, the sentencing authority articulates in writing the statutory reasons that led to its decision. Those reasons, and the evidence supporting them, are conscientiously reviewed by a court which, because of its statewide jurisdiction, can assure consistency, fairness, and rationality in the evenhanded operation of the state law. As in Georgia, this system serves to assure that sentences of death will not be "wantonly" or "freakishly" imposed. See Furman v. Georgia, 408 U.S., at 310, 92 S.Ct., at 2762 (Stewart, J., concurring). Accordingly, the judgment before us is affirmed.
43
It is so ordered.
44
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring in the judgment.
45
There is no need to repeat the statement of the facts of this case and of the statutory procedure under which the death penalty was imposed, both of which are described in detail in the opinion of Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS. I agree with them, see Parts III-B(2)(a) and (b), Ante, at 255-258, that although the statutory aggravating and mitigating circumstances are not susceptible of mechanical application, they are by no means so vague and overbroad as to leave the discretion of the sentencing authority unfettered. Under Florida law, the sentencing judge is Required to impose the death penalty on all first-degree murderers as to whom the statutory aggravating factors outweigh the mitigating factors. There is good reason to anticipate, then, that as to certain categories of murderers, the penalty will not be imposed freakishly or rarely but will be imposed with regularity; and consequently it cannot be said that the death penalty in Florida as to those categories has ceased "to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system." Furman v. Georgia, 408 U.S. 238, 311, 92 S.Ct. 2726, 2763, 33 L.Ed.2d 346 (1972) (White, J., concurring). Accordingly, the Florida statutory scheme for imposing the death penalty does not run afoul of thisourt's holding in Furman v. Georgia.
46
For the reasons set forth in my opinion concurring in the judgment in Gregg v. Georgia, 428 U.S., at 224-225, 96 S.Ct., at 2948-2949, and my dissenting opinion in Roberts v. Louisiana, 428 U.S., at 348-350, 96 S.Ct., at 3013-3014, this conclusion is not undercut by the possibility that some murderers may escape the death penalty solely through exercise of prosecutorial discretion or executive clemency. For the reasons set forth in my dissenting opinion in Roberts v. Louisiana, 428 U.S., at 350-356, 96 S.Ct., at 3014-3017, I also reject petitioner's argument that under the Eighth Amendment the death penalty may never be imposed under any circumstances.
47
I concur in the judgment of affirmance.
48
Mr. Justice BLACKMUN, concurring in the judgment.
49
I concur in the judgment. See Furman v. Georgia, 408 U.S. 238, 405-414, 92 S.Ct. 2726, 2811-16, 33 L.Ed.2d 346 (1972) (Blackmun, J., dissenting), and Id., at 375, 414, and 465, 92 S.Ct., at 2796, 2816, and 2841.
1
It appears that the "ruler" was actually the murder weapon which Medgebow had pulled from his own chest.
2
She described the attacker as wearing light pants and a pinstriped shirt with long sleeves rolled up to the elbow. She also stated that the attacker was a medium-sized white male.
3
See Infra, at 248-250.
4
The murder statute under which petitioner was convicted reads as follows:
"(1)(a) The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person 18 years of age or older when such drug is proven to be the proximate cause of the death of the user, shall be murder in the first degree and shall constitute a capital felony, punishable as provided in s. 775.082.
"(b) In all cases under this section, the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment." Fla.Stat.Ann. § 782.04 (Supp.1976-1977).
Another Florida statute authorizes imposition of the death penalty upon conviction of sexual battery of a child under 12 years of age. § 794.011(2) (Supp.1976-1977). We do not in this opinion consider the constitutionality of the death penalty for any offense other than first-degree murder.
5
See Model Penal Code § 210.6 (Proposed Official Draft, 1962), (set out in Gregg v. Georgia, 428 U.S. at 193-194, 96 S.Ct., at 2935, n. 44).
6
The aggravating circumstances are:
"(a) The capital felony was committed by a person under sentence of imprisonment.
"(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.
"(c) The defendant knowingly created a great risk of death to many persons.
"(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt
to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.
"(e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
"(f) The capital felony was committed for pecuniary gain.
"(g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
"(h) The capital felony was especially heinous, atrocious, or cruel."
§ 921.141(5) (Supp.1976-1977).
The mitigating circumstances are:
"(a) The defendant has no significant history of prior criminal activity.
"(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
"(c) The victim was a participant in the defendant's conduct or consented to the act.
"(d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.
"(e) The defendant acted under extreme duress or under the substantial domination of another person.
"(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
"(g) The age of the defendant at the time of the crime." § 921.141(6) (Supp.1976-1977).
7
Tedder has not always been cited when the Florida court has considered a judge-imposed death sentence following a jury recommendation of life imprisonment. See, E. g., Thompson v. State, 328 So.2d 1 (1976); Douglas v. State, 328 So.2d 18 (1976); Dobbert v. State, 328 So.2d 433 (1976). But in the latter case two judges relied on Tedder in separate opinions, one in support of reversing the death sentence and one in support of affirming it.
8
In one case the Florida court upheld a death sentence where the trial judge had simply listed six aggravating factors as justification for the sentence he imposed. Sawyer v. State, 313 So.2d 680 (1975). Since there were no mitigating factors, and since since some of these aggravating factors arguably fell within the statutory categories it is unclear whether the Florida court would uphold a death sentence that rested entirely on nonstatutory aggravating circumstances. It seems unlikely that it would do so since the capital-sentencing statute explicitly provides that "(a)ggravating circumstances shall be Limited to the following (eight specified factors)." § 921.141(5) (Supp.1976-1977). (Emphasis added.) There is no such limiting language introducing the list of statutory mitigating factors. See § 921.141(6) (Supp.1976-1977). See also n. 14 Infra.
9
Because the trial judge imposes sentence the Florida court has ruled that he may order preparation of a presentence investigation report to assist him in determining the appropriate sentence. See Swan v. State, 322 So.2d 485, 488-489 (1975); Songer v. State, 322 So.2d 481, 484 (1975). These reports frequently contain much information relevant to sentencing. See Gregg v. Georgia, 428 U.S., at 189, 96 S.Ct., at 2933 n. 37.
10
See American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 1.1, Commentary, pp. 43-48 (Approved Draft); President's Commission on Law Enforcement & Administration of Justice: The Challenge of Crime in a Free Society, Task Force Report: The Courts 26 (1967). See also Gregg v. Georgia, 428 U.S., at 189-192, 96 S.Ct., at 2932-2934. In the words of the Florida Court, "a trial judge with experience in the facts of criminality possesses the requisite knowledge to balance the facts of the case against the standard criminal activity which can only be developed by involvement with the trials of numerous defendants." State v. Dixon, 283 So.2d 1, 8 (1973).
11
As in Gregg, we examine the claims of vagueness and overbreadth in the statutory criteria only insofar as it is necessary to determine whether there is a substantial risk that the Florida capital-sentencing system, when viewed in its entirety, will result in the capricious or arbitrary imposition of the death penalty. See Gregg v. Georgia, 428 U.S., at 201, 96 S.Ct., at 2938 n. 51.
12
The Supreme Court of Florida has affirmed death sentences in several cases, including the instant case, where this eighth statutory aggravating factor was found, without specifically stating that the homicide was "pitiless" or "torturous to the victim." See, E. g., Hallman v. State, 305 So.2d 180 (1974) (victim's throat slit with broken bottle); Spinkellink v. State, 313 So.2d 666 (1975) ("career criminal" shot sleeping traveling companion); Gardner v. State, 313 So.2d 675 (1975) (brutal beating and murder); Alvord v. State, 322 So.2d 533 (1975) (three women killed by strangulation, one raped); Douglas v. State, 328 So.2d 18 (1976) (depraved murder); Henry v. State, 328 So.2d 430 (1976) (torture murder); Dobbert v. State, 328 So.2d 433 (1976) (torture and killing of two children). But the circumstances of all of these cases could accurately be characterized as "pitiless" and "unnecessarily torturous," and it thus does not appear that the Florida Court has abandoned the definition that it announced in Dixon and applied in Alford, Tedder, and Halliwell.
13
While it might be argued that this case broadens that construction, since only one person other than the victim was attacked at all and then only by being hit with a fist, this would be to read more into the State Supreme Court's opinion than is actually there. That court considered 11 claims of error advanced by the petitioner, including the trial judge's finding that none of the statutory mitigating circumstances existed. It did not, however, consider whether the findings as to each of the statutory aggravating circumstances were supported by the evidence. If only one aggravating circumstance had been found, or if some mitigating circumstance had been found to exist but not to outweigh the aggravating circumstances, we would be justified in concluding that the State Supreme Court had necessarily decided this point even though it had not expressly done so. However, in the circumstances of this case, when four separate aggravating circumstances were found and where each mitigating circumstance was expressly found Not to exist, no such holding on the part of the State Supreme Court can be implied.
14
The petitioner notes further that Florida's sentencing system fails to channel the discretion of the jury or judge because it allows for consideration of nonstatutory aggravating factors. In the only case to approve such a practice, Sawyer v. State, 313 So.2d 680 (1975), the Florida court recast the trial court's six nonstatutory aggravating factors into four aggravating circumstances two of them statutory. As noted earlier, it is unclear that the Florida court would ever approve a death sentence based entirely on nonstatutory aggravating circumstances. See n. 8, Supra.
15
State v. Dixon, 283 So.2d, at 10.
16
The petitioner also argues that since the Florida Court does not review sentences of life imprisonment imposed in capital cases or sentences imposed in cases where a capital crime was charged but where the jury convicted of a lesser offense, it will have an unbalanced view of the way that the typical jury treats a murder case and it will affirm death sentences under circumstances where the vast majority of judges would have imposed a sentence of life imprisonment. As we noted in Gregg v. Georgia, 428 U.S., at 204, 96 S.Ct., at 2940 n. 56, this problem is not sufficient to raise a serious risk that the state capital-sentencing system will result in arbitrary and capricious imposition of the death penalty.
| 01
|
428 U.S. 579
96 S.Ct. 3110
49 L.Ed.2d 1141
Lawrence CANTOR, dba Selden Drugs Company, etc., Petitioner,v.The DETROIT EDISON COMPANY.
No. 75-122.
Argued Jan. 14, 1976.
Decided July 6, 1976.
Syllabus
Respondent, a private utility that is the sole supplier of electricity in southeastern Michigan, also furnishes its residential customers, without additional charge, with almost 50% Of the most frequently used standard-size light bulbs under a longstanding practice antedating state regulation of electric utilities. This marketing practice for light bulbs is approved, as part of respondent's rate structure, by the Michigan Public Service Commission, and may not be changed unless and until respondent files, and the Commission approves, a new tariff. Petitioner, a retail druggist selling light bulbs, brought an action against respondent, claiming that it was using its monopoly power in the distribution of electricity to restrain competition in the sale of light bulbs in violation of the Sherman Act. The District Court entered a summary judgment against petitioner, holding on the authority of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, that the Commission's approval of respondent's light-bulb marketing practices exempted the practices from the federal antitrust laws, and the Court of Appeals affirmed. Held: Neither Michigan's approval of respondent's present tariff nor the fact that the light-bulb-exchange program may not be terminated until a new tariff is filed, is sufficient basis for implying an exemption from the federal antitrust laws for that program. Pp. 592-598.
(a) The State's participation in the decision to have a light-bulb exchange program is not so dominant that it is unfair to hold a private party responsible for its conduct in implementing the decision, but rather the respondent's participation in the decision is sufficiently significant to require that its conduct, like comparable conduct by unregulated businesses, conform to applicable federal law. Pp. 592-595.
(b) Michigan's regulation of respondent's distribution of electricity poses no necessary conflict with a federal requirement that respondent's activities in competitive markets satisfy antitrust standards. Merely because certain conduct may be subject to state regulation and to the federal antitrust laws does not necessarily mean that it must satisfy inconsistent standards, but, even assuming inconsistency, this would not mean that the federal interest must inevitably be subordinated to the State's; moreover, even assuming that Congress did not intend the antitrust laws to apply to areas of the economy primarily regulated by a State, the enforcement of the antitrust laws would not be foreclosed in an essentially unregulated area such as the electric light-bulb market. Pp. 595-598.
513 F.2d 630, reversed and remanded.
Burton I. Weinstein, Chicago, Ill., for petitioner.
Solicitor Gen. Robert H. Bork, Washington, D. C., for the United States, as amicus curiae, by special leave of Court.
George D. Reycraft for respondents.
Howard J. Trienens, Chicago, Ill., for Michigan Bell Telephone Co., et al., as amici curiae, by special leave of Court.
Mr. Justice STEVENS delivered the opinion of the Court.**
1
In Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, the Court held that the Sherman Act was not violated by state action displacing competition in the marketing of raisins. In this case we must decide whether the Parker rationale immunizes private action which has been approved by a State and which must be continued while the state approval remains effective.
2
The Michigan Public Service Commission pervasively regulates the distribution of electricity within the State and also has given its approval to a marketing practice which has a substantial impact on the otherwise unregulated business of distributing electric light bulbs. Assuming, arguendo, that the approved practice has unreasonably restrained trade in the light-bulb market, the District Court1 and the Court of Appeals2 held, on the authority of Parker, that the Commission's approval exempted the practice from the federal antitrust laws. Because we questioned the applicability of Parker to this situation, we granted certiorari, 423 U.S. 821, 96 S.Ct. 34, 46 L.Ed.2d 38. We now reverse.
3
Petitioner, a retail druggist selling light bulbs, claims that respondent is using its monopoly power in the distribution of electricity to restrain competition in the sale of bulbs in violation of the Sherman Act.3 Discovery and argument in connection with defendant's motion for summary judgment were limited by stipulation to the issue raised by the Commission's approval of respondent's light-bulb-exchange program. We state only the facts pertinent to that issue and assume, without opining, that without such approval an antitrust violation would exist. To the extent that the facts are disputed, we must resolve doubts in favor of the petitioner since summary judgment was entered against him. We first describe respondent's "lamp exchange program," we next discuss the holding in Parker v. Brown, and then we consider whether that holding should be extended to cover this case. Finally, we comment briefly on additional authorities on which respondent relies.
4
* Respondent, the Detroit Edison Co., distributes electricity and electric light bulbs to about five million people in southeastern Michigan. In this marketing area, respondent is the sole supplier of electricity, and supplies consumers with almost 50% Of the standard-size light bulbs they use most frequently.4 Customers are billed for the electricity they consume, but pay no separate charge for light bulbs. Respondent's rates, including the omission of any separate charge for bulbs, have been approved by the Michigan Public Service Commission, and may not be changed without the Commission's approval. Respondent must, therefore, continue its lamp-exchange program until it files a new tariff and that new tariff is approved by the Commission.
5
Respondent, or a predecessor, has been following the practice of providing limited amounts of light bulbs to its customers without additional charge since 1886.5 In 1909 the State of Michigan began regulation of electric utilities.6 In 1916 the Michigan Public Service Commission first approved a tariff filed by respondent setting forth the lamp-supply program. Thereafter, the Commission's approval of respondent's tariffs has included implicit approval of the lamp-exchange program. In 1964 the Commission also approved respondent's decision to eliminate the program for large commercial customers.7 The elimination of the service for such customers became effective as part of a general rate reduction for those customers.
6
In 1972 respondent provided its residential customers with 18,564,381 bulbs at a cost of $2,835,000.8 In its accounting to the Michigan Public Service Commission, respondent included this amount as a portion of its cost of providing service to its customers. Respondent's accounting records reflect no direct profit as a result of the distribution of bulbs. The purpose of the program, according to respondent's executives, is to increase the consumption of electricity. The effect of the program, according to petitioner, is to foreclose competition in a substantial segment of the light-bulb market.9
7
The distribution of electricity in Michigan is pervasively regulated by the Michigan Public Service Commission. A Michigan statute10 vests the Commission with "complete power and jurisdiction to regulate all public utilities in the state . . . ." The statute confers express power on the Commission "to regulate all rates, fares, fees, charges, services, rules, conditions of service, and all other matters pertaining to the formation, operation, or direction of such public utilities." Respondent advises us that the heart of the Commission's function is to regulate the " 'furnishing . . . (of) electricity for the production of light, heat or power . . . .' "11
8
The distribution of electric light bulbs in Michigan is unregulated. The statute creating the Commission contains no direct reference to light bulbs. Nor, as far as we have been advised, does any other Michigan statute authorize the regulation of that business. Neither the Michigan Legislature, nor the Commission, has ever made any specific investigation of the desirability of a lamp-exchange program or of its possible effect on competition in the light-bulb market. Other utilities regulated by the Michigan Public Service Commission do not follow the practice of providing bulbs to their customers at no additional charge. The Commission's approval of respondent's decision to maintain such a program does not, therefore, implement any statewide policy relating to light bulbs. We infer that the State's policy is neutral on the question whether a utility should, or should not, have such a program.
9
Although there is no statute, Commission rule, or policy which would prevent respondent from abandoning the program merely by filing a new tariff providing for a proper adjustment in its rates, it is nevertheless apparent that while the existing tariff remains in effect, respondent may not abandon the program without violating a Commission order, and therefore without violating state law. It has, therefore, been permitted by the Commission to carry out the program, and also is required to continue to do so until an appropriate filing has been made and has received the approval of the Commission.
10
Petitioner has not named any public official as a party to this litigation and has made no claim that any representative of the State of Michigan has acted unlawfully.
II
11
In Parker v. Brown the Court considered whether the Sherman Act applied to state action. The way the Sherman Act question was presented and argued in that case sheds significant light on the character of the state-action concept embraced by the Parker holding.
12
The plaintiff, Brown, was a producer and packer of raisins; the defendants were the California Director of Agriculture and other public officials charged by California statute with responsibility for administering a program for the marketing of the 1940 crop of raisins. The express purpose of the program was to restrict competition among the growers and maintain prices in the distribution of raisins to packers.12 Nevertheless, in the District Court, Brown did not argue that the defendants had violated the Sherman Act. He sought an injunction against the enforcement of the program on the theory that it interfered with his constitutional right to engage in interstate commerce. Because he was attacking the constitutionality of a California statute and regulations having statewide applicability, a three-judge District Court was convened.13 With one judge dissenting, the District Court held that the program violated the Commerce Clause and granted injunctive relief.14
13
The defendant state officials took a direct appeal to this Court. Probable jurisdiction was noted on April 6, 1942, and the Court heard oral argument on the Commerce Clause issue on May 5, 1942. In the meantime, on April 27, 1942, the Court held that the State of Georgia is a "person" within the meaning of § 7 of the Sherman Act and therefore entitled to maintain an action for treble damages. Georgia v. Evans, 316 U.S. 159, 62 S.Ct. 972, 86 L.Ed. 1346.
14
Presumably because the Court was then concerned with the relationship between the sovereign States and the antitrust laws, it immediately set Parker v. Brown for reargument15 and, on its own motion, requested the Solicitor General of the United States to file a brief as Amicus curiae and directed the parties to discuss the question whether the California statute was rendered invalid by the Sherman Act.16
15
In his supplemental brief the Attorney General of California17 advanced three arguments against using the Sherman Act as a basis for upholding the injunction entered by the District Court. He contended (1) that even though a State is a "person" entitled to maintain a treble-damage action as a plaintiff, Congress never intended to subject a sovereign State to the provisions of the Sherman Act; (2) that the California program did not, in any event, violate the federal statute; and (3) that since no evidence or argument pertaining to the Sherman Act had been offered or considered in the District Court, the injunction should not be sustained on an antitrust theory.18
16
In his brief for the United States as amicus curiae, the Solicitor General did not take issue with the appellants' first argument. He contended that the California program was inconsistent with the policy of the Sherman Act, but expressly disclaimed any argument that the State of California or its officials had violated federal law.19 Later in his brief the Solicitor General drew an important distinction between economic action taken by the State itself and private action taken pursuant to a state statute permitting or requiring individuals to engage in conduct prohibited by the Sherman Act. The Solicitor General contended that the private conduct would clearly be illegal but recognized that a different problem existed with respect to the State itself.20 It was the latter problem that was presented in the Parker case.
17
This Court set aside the injunction entered by the District Court. In the portion of his opinion for the Court discussing the Sherman Act issue, Mr. Chief Justice Stone addressed only the first of the three arguments advanced by the California Attorney General. The Court held that even though comparable programs organized by private persons would be illegal, the action taken by state officials pursuant to express legislative command did not violate the Sherman Act.21
18
This narrow holding made it unnecessary for the Court to agree or to disagree with the Solicitor General's view that a state statute permitting or requiring private conduct prohibited by federal law "would clearly be void."22 The Court's narrow holding also avoided any question about the applicability of the antitrust laws to private action taken under color of state law.
19
Unquestionably the term "state action" may be used broadly to encompass individual action supported to some extent by state law or custom. Such a broad use of the term, which is familiar in civil rights litigation,23 is not, however, what Mr. Chief Justice Stone described in his Parker opinion.He carefully selected language which plainly limited the Court's holding to official action taken by state officials.24
20
In this case, unlike Parker, the only defendant is a private utility. No public officials or agencies are named as parties and there is no claim that any state action violated the antitrust laws. Conversely, in Parker there was no claim that any private citizen or company had violated the law. The only Sherman Act issue decided was whether the sovereign State itself, which had been held to be a person within the meaning of § 7 of the statute, was also subject to its prohibitions. Since the case now before us does not call into question the legality of any act of the State of Michigan or any of its officials or agents, it is not controlled by the Parker decision.
III
21
In this case we are asked to hold that private conduct required by state law is exempt from the Sherman Act. Two quite different reasons might support such a rule. First, if a private citizen has done nothing more than obey the command of his state sovereign, it would be unjust to conclude that he has thereby offended federal law. Second, if the State is already regulating an area of the economy, it is arguable that Congress did not intend to superimpose the antitrust laws as an additional, and perhaps conflicting, regulatory mechanism. We consider these two reasons separately.
22
We may assume, Arguendo, that it would be unacceptable ever to impose statutory liability on a party who had done nothing more than obey a state command. Such an assumption would not decide this case, if, indeed, it would decide any actual case. For typically cases of this kind involve a blend of private and public decisionmaking.25 The Court has already decided that state authorization,26 approval,27 encouragement,28 or participation29 in restrictive private conduct confers no antitrust immunity. And in Schwegmann Bros. v. Calvert Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035, the Court invalidated the plaintiff's entire resale price maintenance program even though it was effective throughout the State only because the Louisiana statute imposed a direct restraint on retailers who had not signed fair trade agreements.30
23
In each of these cases the initiation and enforcement of the program under attack involved a mixture of private and public decisionmaking. In each case, notwithstanding the state participation in the decision, the private party exercised sufficient freedom of choice to enable the Court to conclude that he should be held responsible for the consequences of his decision.
24
The case before us also discloses a program which is the product of a decision in which both the respondent and the Commission participated. Respondent could not maintain the lamp-exchange program without the approval of the Commission, and now may not abandon it without such approval. Nevertheless, there can be no doubt that the option to have, or not to have, such a program is primarily respondent's, not the Commission's.31 Indeed, respondent initiated the program years before the regulatory agency was even created. There is nothing unjust in a conclusion that respondent's participation in the decision is sufficiently significant to require that its conduct implementing the decision, like comparable conduct by unregulated businesses, conform to applicable federal law.32 Accordingly, even though there may be cases in which the State's participation in a decision is so dominant that it would be unfair to hold a private party responsible for his conduct in implementing it, this record discloses no such unfairness.
25
Apart from the question of fairness to the individual who must conform not only to state regulation but to the federal antitrust laws as well, we must consider whether Congress intended to superimpose antitrust standards on conduct already being regulated under a different standard. Amici curiae forcefully contend that the competitive standard imposed by antitrust legislation is fundamentally inconsistent with the "public interest" standard widely enforced by regulatory agencies, and that the essential teaching of Parker v. Brown is that the federal antitrust laws should not be applied in areas of the economy pervasively regulated by state agencies.
26
There are at least three reasons why this argument is unacceptable. First, merely because certain conduct may be subject both to state regulation and to the federal antitrust laws does not necessarily mean that it must satisfy inconsistent standards; second, even assuming inconsistency, we could not accept the view that the federal interest must inevitably be subordinated to the State's; and finally, even if we were to assume that Congress did not intend the antitrust laws to apply to areas of the economy primarily regulated by a State, that assumption would not foreclose the enforcement of the antitrust laws in an essentially unregulated area such as the market for electric light bulbs.
27
Unquestionably there are examples of economic regulation in which the very purpose of the government control is to avoid the consequences of unrestrained competition. Agricultural marketing programs, such as that involved in Parker, were of that character. But all economic regulation does not necessarily suppress competition. On the contrary, public utility regulation typically assumes that the private firm is a natural monopoly and that public controls are necessary to protect the consumer from exploitation.33 There is no logical inconsistency between requiring such a firm to meet regulatory criteria insofar as it is exercising its natural monopoly powers and also to comply with antitrust standards to the extent that it engages in business activity in competitive areas of the economy.34 Thus, Michigan's regulation of respondent's distribution of electricity poses no necessary conflict with a federal requirement that respondent's activities in competitive markets satisfy antitrust standards.35
28
The mere possibility of conflict between state regulatory policy and federal antitrust policy is an insufficient basis for implying an exemption from the federal antitrust laws. Congress could hardly have intended state regulatory agencies to have broader power than federal agencies to exempt private conduct from the antitrust laws.36 Therefore, assuming that there are situations in which the existence of state regulation should give rise to an implied exemption, the standards for ascertaining the existence and scope of such an exemption surely must be at least as severe as those applied to federal regulatory legislation.
29
The Court has consistently refused to find that regulation gave rise to an implied exemption without first determining that exemption was necessary in order to make the regulatory Act work, "and even then only to the minimum extent necessary."37
30
The application of that standard to this case inexorably requires rejection of respondent's claim. For Michigan's regulatory scheme does not conflict with federal antitrust policy and, conversely, if the federal antitrust laws should be construed to outlaw respondent's light-bulb-exchange program, there is no reason to believe that Michigan's regulation of its electric utilities will no longer be able to function effectively. Regardless of the outcome of this case, Michigan's interest in regulating its utilities' distribution of electricity will be almost entirely unimpaired.
31
We conclude that neither Michigan's approval of the tariff filed by respondent, nor the fact that the lamp-exchange program may not be terminated until a new tariff is filed, is a sufficient basis for implying an exemption from the federal antitrust laws for that program.38
IV
32
The dissenting opinion voices the legitimate concern that violation of the antitrust laws by regulated companies may give rise to "massive treble damage liabilities." This is an oft-repeated criticism of the inevitably imprecise language of the Sherman Act and of the consequent difficulty in predicting with certainty its application to various specific fact situations.39 The far-reaching value of this basic part of our law, however, has enabled it to withstand such criticism in the past.40
33
The concern about treble-damage liability has arguable relevance to this case in two ways. If the hazard of violating the antitrust laws were enhanced by the fact of regulation, or if a regulated company had engaged in anticompetitive conduct in reliance on a justified understanding that such conduct was immune from the antitrust laws, a concern with the punitive aspects of the treble-damage remedy would be appropriate. But neither of those circumstances is present in this case.
34
When regulation merely takes the form of approval of a tariff proposed by the company, it surely has not increased the company's risk of violating the law. The respondent utility maintained its lamp-exchange program both before and after it was regulated. The approval of the program by the Michigan Commission provided the company with an arguable defense to the antitrust charge, but did not increase its exposure to liability.
35
Nor can the utility fairly claim that it was led to believe that its conduct was exempt from the federal antitrust laws. A claim of immunity or exemption is in the nature of an affirmative defense to conduct which is otherwise assumed to be unlawful. This Court has never sustained a claim that otherwise unlawful private conduct is exempt from the antitrust laws because it was permitted or required by state law.
36
In the Court's most recent consideration of this subject, it described the defendant's claim with pointed precision as "this so-called state-action exemption." Goldfarb v. Virginia State Bar, 421 U.S. 773, 788, 95 S.Ct. 2004, 2014, 44 L.Ed.2d 572. The Court then explained that the question whether the anti-competitive activity had been required by the State acting as sovereign was the "threshold inquiry" in determining whether it was state action of the type the Sherman Act was not meant to proscribe.41 Certainly that careful use of language could not have been read as a guarantee that compliance with any state requirement would automatically confer federal antitrust immunity.
37
The dissenting opinion in this case makes much of the obvious fact that Parker v. Brown implicitly held that California's raisin-marketing program was not a violation of the Sherman Act. That is, of course, perfectly true. But the only way the legality of any program may be tested under the Sherman Act is by determining whether the persons who minister it have acted lawfully. The federal statute proscribes the conduct of persons, not programs, and the narrow holding in Parker concerned only the legality of the conduct of the state officials charged by law with the responsibility for administering California's program. What sort of charge might have been made against the various private persons who engaged in a variety of different activities implementing that program is unknown and unknowable because no such charges were made.42 Even if the state program had been held unlawful, such a holding would not necessarily have supported a claim that private individuals who had merely conformed their conduct to an invalid program had thereby violated the Sherman Act. Unless and until a court answered that question, there would be no occasion to consider an affirmative defense of immunity or exemption.
38
Nor could respondent justifiably rely on either the holding in Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, or the reference in that opinion to Parker.43 The holding in Noerr was that the concerted activities of the railroad defendants in opposing legislation favorable to the plaintiff motor carriers was not prohibited by the Sherman Act. The case did not involve any question of either liability or exemption for private action taken in compliance with state law.
39
Moreover, nothing in the Noerr opinion implies that the mere fact that a state regulatory agency may approve a proposal included in a tariff, and thereby require that the proposal be implemented until a revised tariff is filed and approved, is a sufficient reason for conferring antitrust immunity on the proposed conduct. The passage quoted in the dissent, Post, at 622, sets up an assumed dichotomy between a restraint imposed by governmental action, as contrasted with one imposed by private action, and then cites United States v. Rock Royal Co-op., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446, and Parker for the conclusion that the former does not violate the Sherman Act.44 That passing reference to Parker sheds no light on the significance of state action which amounts to little more than approval of a private proposal. It surely does not qualify the categorical statement in Parker that "a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful." 317 U.S., at 351, 63 S.Ct., at 314. Yet the dissent would allow every state agency to grant precisely that immunity by merely including a direction to engage in the proposed conduct in an approval order.45
40
Mr. Justice STEWART's separate opinion possesses a virtue which ours does not. It announces a simple rule that can easily be applied in any case in which a state regulatory agency approves a proposal and orders a regulated company to comply with it. No matter what the impact of the proposal on interstate commerce, and no matter how peripheral or casual the State's interests may be in permitting it to go into effect, the state act would confer immunity from treble-damages liability. Such a rule is supported by the wholesome interest in simplicity in the regulation of a complex economy. In our judgment, however, that interest is heavily outweighed by the fact that such a rule may give a host of state regulatory agencies broad power to grant exemptions from an important federal law for reasons wholly unrelated either to federal policy or even to any necessary significant state interest. Although it is tempting to try to fashion a rule which would govern the decision of the liability issue and the damages issue in all future cases presenting state-action issues, we believe the Court should adhere to its settled policy of giving concrete meaning to the general language of the Sherman Act by a process of case-by-case adjudication of specific controversies.
41
Since the District Court has not yet addressed the question whether the complaint alleged a violation of the antitrust laws, the case is remanded for a determination of that question and for such other proceedings as may be appropriate.
42
Reversed and remanded.
43
Mr. CHIEF JUSTICE BURGER, concurring in the judgment and in all except Parts II and IV of the Court's opinion.
44
I concur in the judgment and in all except Parts II and IV of the Court's opinion. I do not agree, however, that Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), can logically be limited to suits against state officials. In interpreting Parke the Court has heretofore focused on the challenged Activity, not upon the identity of the Parties to the suit.
45
"The threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe is whether the Activity is required by the State acting as sovereign." Goldfarb v. Virginia State Bar, 421 U.S. 773, 790, 95 S.Ct. 2004, 2015, 44 L.Ed.2d 572 (1975) (emphasis added).
46
If Parker's holding were limited simply to the nonliability of state officials, then the Court's inquiry in Goldfarb as to the County Bar Association's claimed exemption could have ended upon our recognition that the organization was "a voluntary association and not a state agency. . . ." 421 U.S., at 790, 95 S.Ct., at 2014. Yet, before determining that there was no exemption from the antitrust laws, the Court proceeded to treat the Association's contention that its action having been "prompted" by the State Bar, was "state action for Sherman Act purposes." Ibid.
47
The reading of Parker in Part II is unnecessary to the result in this case; that decision simply does not address the precise issue raised by the present case. There was no need in Parker to focus upon the situation where the State, in addition to requiring a public utility "to meet regulatory criteria insofar as it is exercising its natural monopoly powers," Ante, at 596, also purports, without any independent regulatory purpose, to control the utility's activities in separate, competitive markets. Today the Court correctly concludes:
48
"The Commission's approval of respondent's decision to maintain such a program does not . . . implement any statewide policy relating to light bulbs. We infer that the State's policy is Neutral on the question whether utility should, or should not, have such a program." Ante, at 585 (emphasis added).
49
To find a "state action" exemption on the basis of Michigan's undifferentiated sanction of this ancillary practice could serve no federal or state policy.
50
Mr. Justice BLACKMUN, concurring in the judgment.
51
I agree with the Court insofar as it holds that the fact that anticompetitive conduct is sanctioned, or even required, by state law does not of itself put that conduct beyond the reach of the Sherman Act. Since the opposite proposition is the ground on which the Court of Appeals affirmed the dismissal of this suit, I also agree that its judgment must be reversed. My approach, however, is somewhat different from that of the Court.
52
* As to the principal question in the case, that of the Sherman Act's pre-emptive effect upon inconsistent state laws, it is, as the dissent points out, one of congressional intent. No one denies that Congress could, if it wished, override those state laws whose operation would subvert the federal policy of free competition in interstate commerce. In discerning that intent, however, I find somewhat less assistance in the legislative history than does the dissent. It is true that the framers of the Sherman Act expressed the view that certain areas of economic activity were left entirely to state regulation. The dissent quotes several of these expressions. Post, at 632-634. A careful reading of those statements reveals, however, that they little more than reflect the then-prevailing view that Congress lacked the Power, under the Commerce Clause, to regulate economic activity that was within the domain of the States. The Court since then has recognized a greatly expanded Commerce Clause power. Arguably, the Sherman Act should have remained confined within the outlines of that power as it was thought to exist in 1890 on the theory that if Congress believe it could not regulate any more broadly, it must not have attempted to do so. But that bridge already has been crossed, for it has been held that Congress intended the reach of the Sherman Act to expand along with that of the commerce power. Hospital Building Co. v. Rex Hospital Trustees, 425 U.S. 738, 743 n.2, 96 S.Ct. 1848, 1852, 48 L.Ed.2d 338 (1976), and cases cited.
53
Our question in this case is one that the Sherman Act's framers did not directly confront or explicitly address: What was to be the result if the expanding ambit of the Sherman Act should bring it into conflict with inconsistent state law? But it seems to me that this bridge also has been crossed. In Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951), the issue was whether the Sherman Act permitted enforcement of a Louisiana statute requiring compliance by liquor retailers with resale price agreements to which they were not parties, but which had been entered into by other retailers with their wholesale suppliers. The Court held the Louisiana statute unenforceable; there is no plausible reading of that decision other than that the statute was pre-empted by the Sherman Act.1 Northern Securities Co. v. United States, 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 679 (1904), is to the same effect. The defendants of the railroad holding company attacked in that case argued that it was beyond the Sherman Act's reach because it was lawful under the corporation laws of New Jersey. The holding company was nonetheless held unlawful, and, to that extent, the law of New Jersey was forced to give way.2 Indeed, I suppose that some degree of state-law pre-emption is implicit in the most fundamental operation of the Sherman Act. If a State had no antitrust policy of its own, anticompetitive combinations of all kinds would be sanctioned and enforced under that State's general contract and corporation law. Yet, there has never been any doubt that if such combinations offend the Sherman Act, they are illegal, and state laws to that extent are overridden.3
54
Congress itself has given support to the view that inconsistent state laws are pre-empted by the Sherman Act. Were it the case that state statutes held complete sway, Congress would not have found it necessary in 1937 to pass the Miller-Tydings Fair Trade Act, 50 Stat. 693, amending the Sherman Act, specifically exempting from the latter's operation certain price maintenance agreements sanctioned by state law. 15 U.S.C. § 1. There are other instances of Congress' acting to protect state-sanctioned anticompetitive schemes from the Sherman Act. In response to Schwegmann, see H.R.Rep. No. 1437, 82d Cong., 2d Sess., 1-2, Congress in 1952 passed the McGuire bill, 66 Stat. 632, extending the Miller-Tydings exemption to state statutes that enforced resale price agreements against nonsigners. 15 U.S.C. §§ 45(a)(2) to (5). A similar enactment is the McCarran-Ferguson Act of 1945, 59 Stat. 34, exempting from federal statutes "any law enacted by any State for the purpose of regulating the business of insurance," with provision that the Sherman Act, and other named federal statutes, should apply to that business after a specified date "to the extent that such business is not regulated by State law." 15 U.S.C. § 1012(b).4 These express grants of Sherman Act immunity seem significant to me. As the Court, stated in United States v. Borden Co., 308 U.S. 188, 201, 60 S.Ct. 182, 189, 84 L.Ed. 181 (1939), construing the immunity granted to certain agreements by the Agricultural Marketing Agreement Act of 1937, "(i)f Congress had desired to grant any further immunity, Congress doubtless would have said so."
II
55
I also agree with Mr. Justice STEVENS that the particular anticompetitive scheme attacked in this case must fall despite the imprimatur it claims to have received from the State of Michigan. To say, as I have, that the Sherman Act generally pre-empts inconsistent state laws is not to answer the much more difficult question as to which such laws are pre-empted and to what extent. I fear there are no easy solutions, though several suggest themselves.
56
It cannot be decisive, for example, simply that a state law goes so far as to require, rather than simply to authorize, the anticompetitive conduct in question. The Court accepted this as a prerequisite to antitrust immunity in Goldfarb v. Virginia State Bar, 421 U.S. 773, 790, 95 S.Ct. 2004, 2015, 44 L.Ed.2d 572 (1975), but it cannot alone be sufficient. The whole issue in Schwegmann was whether the State Could require obedience to a fixed resale price arrangement. Similarly, compliance with an anticompetitive contract, or adherence to an illegal corporate combination, might well be "required" by a State's general contract and corporation law.
57
Neither can it be decisive that a particular state-sanctioned scheme was initiated by the private actors rather than by the State. I see no difference in the degree of private initiation as between the marketing arrangement approved in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943) (and properly approved, I think, for reasons set forth below), and the resale price maintenance scheme disapproved in Schwegmann. In each case the particular scheme was initiated by the private actors at the invitation of a general statute, with which they may or may not have had anything to do. The same was true in Northern Securities, and the same is true here. To be sure, there is a certain rough justice, as well as an appearance of simplicity, in a rule based upon who actually is responsible for the scheme in question, but I fear that both the justice and the simplicity would prove illusory in the rule's actual application. Every state enactment is initiated, in its way, by its beneficiaries. It would scarcely make sense to immunize only those powerful enough to speak entirely through their governmental representatives, or, for that matter, to stifle such speech with the threat that it will destroy antitrust immunity. Moreover, the process of enactment is likely to involve such a complex interplay between those regulating and those regulated that it will be impossible to identify the true "initiator."
58
A final ostensibly simple, solution that I find wanting would be to insist only on some degree of affirmative articulation by the State of its conscientious intent to sanction the challenged scheme, and its reasons therefor. This also is a tempting solution, particularly in this case, where there is little to suggest (at least in recent years) that the Michigan Public Service Commission has even actively considered the light-bulb tie-in, much less articulated a justification for it. Yet such a solution would also lead to perverse results. A regulation whose justification was too plain to require explication would be vulnerable; a questionable one could be immunized if its proponents had the skill or influence to generate the proper legislative history. And, of course, deciding how much "affirmative articulation" of state policy is enough is not a simple matter.
59
I would apply at least for now, a rule of reason, taking it as a general proposition that state-sanctioned anticompetitive activity must fall like any other if its potential harms outweigh its benefits. This does not mean that state-sanctioned and private activity are to be treated alike. The former is different because the fact of state sanction figures powerfully in the calculus of harm and benefit. If, for example, the justification for the scheme lies in the protection of health or safety, the strength of that justification is forcefully attested to by the existence of a state enactment. I would assess the justifications of such enactments in the same way as is done in equal protection review, and where such justifications are at all substantial (as one would expect them to be in the case of most professional licensing or fee-setting schemes, for example, cf. Olsen v. Smith, 195 U.S. 332, 25 S.Ct. 52, 49 L.Ed. 224 (1904)), I would be reluctant to find the restraint unreasonable. A particularly strong justification exists for a state-sanctioned scheme if the State in effect has substituted itself for the forces of competition, and regulates private activity to the same ends sought to be achieved by the Sherman Act. Thus, an anticompetitive scheme which the State institutes on the plausible ground that it will improve the performance of the market in fostering efficient resource allocation and low prices can scarcely be assailed. One could not doubt the legality of Detroit Edison's electric power monopoly; the fear of such a monopoly is primarily its tendency to charge excessive prices, but its prices in this instance are controlled by the State.
60
No doubt such a rule of reason will crystallize, as it is applied, into various Per se rules relating to certain kinds of state enactments, such as the regulation of the classic natural monopoly, the public utility. We should not shrink in our general approach, however, from what seems to me our constitutionally mandated task, one often set for us by conflicting federal and state laws, and that is the balancing of implicated federal and state interests with a view to assuring that when these are truly in conflict, the former prevail.
61
The dissent's fears on this score appear to me to be exaggerated. The balancing of harm and benefit is, in general, a process with which federal courts are well acquainted in the antitrust field. The special problem of assessing state interests to determine whether they are strong enough to prevail against supreme federal dictates is also a familiar one to the federal courts. Indeed, a state action that interferes with competition not only among its own citizens but also among the States is already subject under the Commerce Clause to much the same searching review of state justifications as is proposed here. See, E. g., Dean Milk Co. v. Madison, 340 U.S. 349, 354, 71 S.Ct. 295, 298, 95 L.Ed. 329 (1951) (state restriction on sale of milk not locally processed held invalid because "reasonable and adequate alternatives (were) available," to protect health interests); Southern Pacific Co. v. Arizona, 325 U.S. 761, 770-784, 65 S.Ct. 1515, 1521-1527, 89 L.Ed. 1915 (1945) (state restriction of train lengths held invalid under the Commerce Clause because "the state (safety) interest is outweighed by the interest of the nation in an adequate, economical and efficient railway transportation service").
III
62
By these standards the present case does not seem a difficult one. The light-bulb tie-in presents the usual dangers of such a scheme, principally that respondent will extend its monopoly from the sale of electric power into that of light bulbs, not because it sells better light bulbs, but because its light bulbs are the ones customers must pay for if they are to have light at all. See P. Areeda, Antitrust Analysis 569-570 (2d ed. 1974). On the record before us the scheme appears to be unjustified. No doubt it originated as a means to promote electric power use, but it is difficult to see why a tie-in (rather than an optional, promotional lightbulb sale) was necessary to that end even in the 19th century, laying aside the question whether the promotion of greater electric power use remains today a plausible public goal. Respondent would justify the scheme on the ground of consumer savings, its light bulbs assertedly being cheaper and better than those commercially available. Brief for Respondent 7-9, 41-42. But again, a tie-in is not necessary to pass along these savings. A tie-in is only necessary in order to force consumers to pay for light bulbs from Detroit Edison rather than someone else. But there is no indication that one light bulb does not fit the socket as well as another, or that the sale of light bulbs is in a way crucial to respondent's successful operation. Conceivably, Michigan's aim is the very extension of the monopoly, born of a preference for having light bulbs supplied by one whose prices are already regulated. But ending competition in the light-bulb market cannot be accepted as an adequate state objective without some evidence of which there is not the least hint in this record that such competition is in some way ineffective. For all that appears, light-bulb marketing, unlike electric power production, is not a natural monopoly, nor does it implicate health or safety, nor is it beset with problems of instability or other flaws in the competitive market.5 This is what I take it the Court means when it says the electric light-bulb market is "essentially unregulated," and on that understanding I agree with its conclusion. It is conceivable that respondent may show, upon further evidence, a sufficient justification for the scheme, but it certainly has not done so as yet.6
63
Mr. Justice STEWART, with whom Mr. Justice POWELL and Mr. Justice REHNQUIST join, dissenting.
64
The Court today holds that a public utility company, pervasively regulated by a state utility commission, may be held liable for treble damages under the Sherman Act for engaging in conduct which, under the requirements of its tariff, it is obligated to perform. I respectfully dissent from this unprecedented application of the federal antitrust laws, which will surely result in disruption of the operation of every state-regulated public utility company in the Nation and in the creation of "the prospect of massive treble damage liabilities"1 payable ultimately by the companies' customers.
65
The starting point in analyzing this case is Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315. While Parker did not create the "so-called state- action exemption"2 from the federal antitrust laws,3 it is the case that is most frequently cited for the proposition that the "(Sherman) Act was intended to regulate private practices and not to prohibit a State from imposing a restraint as an act of government." Goldfarb v. Virginia State Bar, 421 U.S. 773, 788, 95 S.Ct. 2004, 2014, 44 L.Ed.2d 572. The plurality opinion would hold that that case decided only that "the sovereign State itself," Ante, at 591, could not be sued under the Sherman Act. This view of Parker, which would trivialize that case to the point of overruling it,4 flies in the face of the decisions of this Court that have interpreted or applied Parker's "state action" doctrine, and is unsupported by the sources on which the plurality relies.
66
As to those sources, I would have thought that except in rare instances an analysis of the positions taken by the parties in briefs submitted to this Court should play no role in interpreting its written opinions.5 A contrary rule would permit the "plain meaning" of our decisions to be qualified or even overridden by their "legislative history" I. e., briefs submitted by the contending parties. The legislative history of congressional enactments is useful in discerning legislative intent, because that history emanates from the same source as the legislation itself and is thus directly probative of the intent of the draftsmen. The conflicting views presented in the adversary briefs and arguments submitted to this Court do not bear an analogous relationship to the Court's final product.
67
But assuming, Arguendo, that it is appropriate to look behind the language of Parker v. Brown, Supra, I think it is apparent that the plurality has distorted the positions taken by the State of California and the United States as Amici curiae. The question presented on reargument in Parker was "whether the state statute involved is rendered invalid by the action of Congress in passing the Sherman Act . . . ." Ante, at 587 n. 16. This phrasing indicates that the precise issue on which the Court sought reargument was whether the California statute was pre-empted by the Sherman Act, not whether sovereign States were immune from suit under the Sherman Act.
68
The State of California and the Solicitor General certainly understood this to be the principal issue. As the plurality opinion correctly notes, the supplemental brief filed by the State of California in response to the question posed by this Court advanced three basic arguments. And as it further notes, this Court's decision in Parker rested on the first of those arguments. But what the plurality fails to acknowledge is that California's first argument was in principal part a straightforward contention that the Sherman Act was not intended to pre-empt state regulation of intrastate commerce.6
69
With respect to the Amicus brief of the United States, the plurality opinion states that the "Solicitor General did not take issue with the appellants' first argument." Ante, at 588. Indeed, the plurality says, the Solicitor General "expressly disclaimed any argument that the State of California or its officials had violated federal law." Ibid. In support of this assertion, the plurality opinion quotes the following language from p. 59 of the Solicitor General's brief in Parker :
70
" '(T)he question we face here is not whether California or its officials have violated the Sherman Act, but whether the state program interferes with the accomplishment of the objectives of the federal statute.' " Ante, at 589 n. 19.
71
This statement by the Solicitor General was indeed correct, because the question on which the Court had requested supplemental briefing was "whether the state statute involved is rendered invalid by the action of Congress in passing the Sherman Act," not "whether California or its officials have violated the Sherman Act. . . ." As the Solicitor General noted in the very next sentence, "(a) state law may be superseded as conflicting with a federal statute irrespective of whether its administrators are subject to prosecution for violation of the paramount federal enactment."7 The Solicitor General then proceeded to take strenuous issue with the principal contention advanced in the first part of the relevant section of California's brief that the framers of the federal legislation had not intended to pre-empt state legislation like the California Agricultural Prorate Act.8
72
Thus, it is clear that the plurality has misread the positions taken by the State of California and the Solicitor General in Parker v. Brown. The question presented to the Court in Parker was whether the restraint on trade effected by the California statute was exempt from the operation of the Sherman Act. That was the question addressed by the Solicitor General and, in principal part, by the State of California. And it was the question resolved by this Court in its holding that "(t)he state in adopting and enforcing the prorate program made no contract or agreement and entered into no conspiracy in restraint of trade or to establish monopoly but, as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit." 317 U.S., at 352, 63 S.Ct., at 314.
73
The notion that Parker decided only that "action taken by state officials pursuant to express legislative command did not violate the Sherman Act," Ante, at 589, and that that "narrow holding . . . avoided any question about the applicability of the antitrust laws to private action" taken under command of state law, ante, at 590, is thus refuted by the very sources on which the plurality opinion relies. That narrow view of the Parker decision is also refuted by the subsequent cases in this Court that have interpreted and applied the Parker doctrine.
74
In Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, for instance, the Court held that no violation of the Sherman Act could be predicated on the attempt by private persons to influence the passage or enforcement of state laws regulating competition in the trucking industry.9 The Court took as its starting point the ruling in Parker v. Brown, that "where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the Act can be made out." 365 U.S., at 136, 81 S.Ct., at 529. The Court viewed it as "equally clear that the Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or monopoly." Ibid. A contrary ruling, the Court held, "would substantially impair the power of government to take actions through its legislature and executive that operate to restrain trade." Id., at 137, 81 S.Ct., at 529. Surely, if a rule permitting Sherman Act liability to arise from lobbying by private parties for state rules restricting competition would impair the power of state governments to impose restraints, then A fortiori a rule permitting Sherman Act liability to arise from private parties' compliance with such rules would impair the exercise of the States' power. But as the Court in Noerr correctly noted, the latter result was foreclosed by Parker's holding that "where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the Act can be made out." 365 U.S., at 136, 81 S.Ct., at 529.
75
Litigation testing the limits of the state-action exemption has focused on whether alleged anticompetitive conduct by private parties is indeed "the result of" state action. Thus, in Goldfarbv. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572, the question was whether price fixing practiced by the respondents was "required by the State acting as sovereign. Parker v. Brown, 317 U.S., at 350-352, 63 S.Ct., at 313-314 . . .." Id., at 790, 95 S.Ct., at 2015. The Court held that the "so-called state-action exemption," Id., at 788, 95 S.Ct., at 2014, did not protect the respondents because it "cannot fairly be said that the State of Virginia through its Supreme Court Rules required the anti-competitive activities of either respondent. . . . Respondents' arguments, at most, constitute the contention that their activities complemented the objective of the ethical codes. In our view that is not state action for Sherman Act purposes. It is n enough that, as the County Bar puts it, anticompetitive conduct is 'prompted' by state action; rather, anticompetitive activities must be compelled by direction of the State acting as a sovereign." Id., at 790-791, 95 S.Ct., at 2015. The plurality's view that Parker does not cover state-compelled private conduct flies in the face of this carefully drafted language in the Goldfarb Opinion.
76
Parker, Noerr, And Goldfarb point unerringly to the proper disposition of this case. The regulatory process at issue has three principal stages. First, the utility company proposes a tariff. Second, the Michigan Public Service Commission investigates the proposed tariff and either approves it or rejects it. Third, if the tariff is approved, the utility company must, under command of state law, provide service in accord with its requirements until or unless the Commission approves a modification. The utility company thus engages in two distinct activities: It proposes a tariff and, if the tariff is approved, it obeys its terms. The first action cannot give rise to antitrust liability under Noerr and the second compliance with the terms of the tariff under the command of state law is immune from antitrust liability under Parker and Goldfarb.10
77
The plurality's contrary view would effectively overrule not only Parker but the entire body of post-Parker case law in this area, including Noerr. With the Parker holding reduced to the trivial proposition that the Sherman Act was not intended to run directly against state officials or governmental entities, the Court would fashion a new two-part test for determining whether state utility regulation creates immunity from the federal antitrust law. The first part of the test would focus on whether subjecting state-regulated utilities to antitrust liability would be "unjust." The second part of the test would look to whether the draftsmen of the Sherman Act intended to "superimpose" antitrust standards, and thus exposure to treble damages, on conduct compelled by state regulatory laws. THE CHIEF JUSTICE accedes to the new two-part test, at least where the State "purports, without any independent regulatory purpose, to control (a) utility's activities in separate, competitive markets." Ante, at 604. The new immunity test thus has the approval of a majority of the Court in instances where state-compelled anticompetitive practices are deemed "ancillary" to the State's regulatory goals.11
78
With scarcely a backward glance at the Noerr case, the Court concludes that because the utility company's "participation" in the decision to incorporate the lamp-exchange program into the tariff was "sufficiently significant," there is nothing "unjust" in concluding that the company is required to conform its conduct to federal antitrust law "like comparable conduct by unregulated businesses . . . ." Ante, at 594. This attempt to distinguish between the exemptive force of mandatory state rules adopted at the behest of private parties and those adopted pursuant to the State's unilateral decision is flatly inconsistent with the rationale of Noerr. There the Court pointedly rejected "(a) construction of the Sherman Act that would disqualify people from taking a public position on matters in which they are financially interested" because such a construction "would . . . deprive the government of a valuable source of information and, at the same time, deprive the people of their right to petition in the very instances in which that right may be of the most importance to them." 365 U.S., at 139, 81 S.Ct., at 530.12
79
Today's holding will not only penalize the right to petition but may very well strike a crippling blow at state utility regulation. As the Court seems to acknowledge, such regulation is heavily dependent on the active participation of the regulated parties, who typically propose tariffs which are either adopted, rejected, or modified by utility commissions. But if a utility can escape the unpredictable consequences of the second arm of the Court's new test, see Infra, this page, only by playing possum by exercising no "option" in the Court's terminology, Ante, at 594 -- then it will surely be tempted to do just that, posing a serious threat to efficient and effective regulation.
80
The second arm of the Court's new immunity test, which apparently comes into play only if the utility's own activity does not exceed a vaguely defined threshold of "sufficient freedom of choice," purports to be aimed at answering the basic question of whether "Congress intended to superimpose antitrust standards on conduct already being regulated" by state utility regulation laws. Ante, at 595. Yet analysis of the Court's opinion reveals that the three factors to which the Court pays heed have little or nothing to do with discerning congressional intent. Rather, the second arm of the new test simply creates a vehicle for ad hoc judicial determinations of the substantive validity of state regulatory goals, which closely resembles the discarded doctrine of substantive due process. See Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93.
81
The Court's delineation of the second arm of the new test proceeds as follows. Apart from the "fairness" question, the Court states, there are "at least three reasons" why the light-bulb program should not enjoy Sherman Act immunity. Ante, at 595. "First," the Court observes, "merely because certain conduct may be subject both to state regulation and to the federal antitrust laws does not necessarily mean that it must satisfy inconsistent standards . . . ." Ibid. That is true enough as an abstract proposition, but the very question is whether the utility's alleged "tie" of light-bulb sales to the provision of electric service is immune from antitrust liability, assuming it would constitute an antitrust violation in the absence of regulation.13 Second, the Court states, "even assuming inconsistency, we could not accept the view that the federal interest must inevitably be subordinated to the State's . . . ." Ibid. The Court goes on to amplify this rationale as follows:
82
"The mere possibility of conflict between state regulatory policy and federal antitrust policy is an insufficient basis for implying an exemption from the federal antitrust laws. Congress could hardly have intended state regulatory agencies to have broader power than federal agencies to exempt private conduct from the antitrust laws. Therefore, assuming that there are situations in which the existence of state regulation should give rise to an implied exemption, the standards for ascertaining the existence and scope of such an exemption surely must be at least as severe as those applied to federal regulatory legislation.
83
"The Court has consistently refused to find that regulation gave rise to an implied exemption without first determining that exemption was necessary in order to make the regulatory act work, 'and even then only to the minimum extent necessary.'
84
"The application of that standard to this case inexorably requires rejection of respondent's claim." Ante, at 596-598 (footnotes omitted).
85
The Court's analysis rests on a mistaken premise. The "implied immunity" doctrine employed by this Court to reconcile the federal antitrust laws and federal regulatory statutes cannot, rationally, be put to the use for which the Court would employ it. That doctrine, a species of the basic rule that repeals by implication are disfavored, comes into play only when two arguably inconsistent Federal statutes are involved. " 'Implied repeal' " of federal antitrust laws by inconsistent state regulatory statutes is not only " 'not favored,' " Ante, at 597-598, n. 37, it is impossible. See U.S.Const. Art. VI, cl. 2.
86
A closer scrutiny of the Court's holding reveals that its reference to the inapposite "implied repeal" doctrine is simply window dressing for a type of judicial review radically different from that engaged in by this Court in Gordon v. New York Stock Exchange, 422 U.S. 659, 95 S.Ct. 2598, 45 L.Ed.2d 463, and United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915. Those cases turned exclusively on issues of statutory construction and involved no judicial scrutiny of the abstract "necessity" or "centrality" of particular regulatory provisions. Instead, the federal regulatory statute was accepted as a given, as was the federal antitrust law. The Court's interpretative effort was aimed at accommodating these arguably inconsistent bodies of law, not at second-guessing legislative judgments concerning the "necessity" for including particular provisions in the regulatory statute.
87
The Court's approach here is qualitatively different. The State of Michigan, through its Public Service Commission, has decided that requiring Detroit Edison to provide "free" light bulbs as a term and condition of service is in the public interest. Yet the Court is prepared to set aside that policy determination: "The lamp-supply program is by no means . . . Imperative in the continued effective functioning of Michigan's regulation of the utilities industry." Ante, at 597 n. 36 (emphasis added). Even "if the federal antitrust laws should be construed to outlaw respondent's light-bulb-exchange program, there is no reason to believe that Michigan's regulation of its electric utilities will no longer be able to Function effectively. Regardless of the outcome of this case, Michigan's interest in regulating its utilities' distribution of electricity will be Almost entirely unimpaired." Ante, at 598 (emphasis added).
88
The emphasized language in these passages shows that the Court is adopting an interpretation of the Sherman Act which will allow the federal judiciary to substitute its judgment for that of state legislatures and administrative agencies with respect to whether particular anticompetitive regulatory provisions are " 'sufficiently central,' " Ante, at 597 n. 37, to a judicial conception of the proper scope of state utility regulation. The content of those " 'purposes,' " Ibid., which the Court will suffer the States to promote derives presumably from the mandate of the Sherman Act. On this assumption and no other is plausible it becomes apparent that the Court's second reason for extending the Sherman Act to cover the light-bulb program, when divested of inapposite references to the federal implied repeal doctrine, is merely a restatement of the third rationale, which the Court phrases as follows: "(F)inally, even if we were to assume that Congress did not intend the antitrust laws to apply to areas of the economy primarily regulated by a State, that assumption would not foreclose the enforcement of the antitrust laws in an essentially unregulated area such as the market for electric light bulbs." Ante, at 595. This statement raises at last the only legitimate question, which is whether Parker erred in holding that Congress, in enacting the Sherman Act, did not intend to vitiate state regulation of the sort at issue here by creating treble-damages exposure for activities performed in compliance therewith.
89
The Court's rationale appears to be that the draftsmen of the Sherman Act intended to exempt state-regulated utilities from treble damages only to the extent those utilities are complying with state rules which narrowly reflect the "typica(l) assum(ption) that the (utility) is a natural monopoly" and which regulate the utility's "natural monopoly powers" as opposed to its "business activity in competitive areas of the economy." Ante, at 595-596 (footnotes omitted). Furthermore, such regulation must be " 'sufficiently central' " to the regulation of natural monopoly powers if it is to shield the regulated party from antitrust liability. Ante, at 597 n. 37. This Delphic reading of the Sherman Act, which is unaided by any reference to the language or legislative history of that Act, is, of course, inconsistent with Parker v. Brown. Parker involved a state scheme aimed at artificially raising the market price of raisins. Raisin production is not a "natural monopoly." If the limits of the state-action exemption from the Sherman Act are congruent with the boundaries of "natural monopoly" power, then Parker was wrongly decided.
90
But the legislative history of the Sherman Act shows conclusively that Parker was correctly decided. The floor debates and the House Report on the proposed legislation clearly reveal, as at least one commentator has noted, that "Congress fully understood the narrow scope given to the commerce clause" in 1890.14 This understanding is, in many ways, of historic interest only, because subsequent decisions of this Court have "permitted the reach of the Sherman Act to expand along with expanding notions of congressional power."15 But the narrow view taken by the Members of Congress in 1890 remains relevant for the limited purpose of assessing their intention regarding the interaction of the Sherman Act and state economic regulation.
91
The legislative history reveals very clearly that Congress' perception of the limitations of its power under the Commerce Clause was coupled with an intent not to intrude upon the authority of the several States to regulate "domestic" commerce. As the House Report stated:
92
"It will be observed that the provisions of the bill are carefully confined to such subjects of legislation as are clearly within the legislative authority of Congress.
93
"No attempt is made to invade the legislative authority of the several States or even to occupy doubtful grounds. No system of laws can be devised by Congress alone which would effectually protect the people of the United States against the evils and oppression of trusts and monopolies. Congress has no authority to deal, generally, with the subject within the States, and the States have no authority to legislate in respect of commerce between the several States or with foreign nations.
94
"It follows, therefore, that the legislative authority of Congress and that of the several States must be exerted to secure the suppression of restraints upon trade and monopolies. Whatever legislation Congress may enact on this subject, within the limits of its authority, will prove of little value unless the States shall supplement it by such auxiliary and proper legislation as may be within their legislative authority."16
95
Similarly, the floor debates on the proposed legislation reveal an intent to "g(o) as far as the Constitution permits Congress to go,"17 in the words of Senator Sherman, conjoined with an intent not to "interfere with" state-law efforts to "prevent And control combinations within the limit of the State."18 Far from demonstrating an intent to pre-empt state laws aimed at preventing or controlling combinations or monopolies, the legislative debates show that Congress' goal was to supplement such state efforts, themselves restricted to the geographic boundaries of the several States. As Senator Sherman stated: "Each State can deal with a combination within the State, but only the General Government can deal with combinations reaching not only the several States, but the commercial world. This bill does not include combinations within a State . . . ."19 Indeed a pre-existing body of state law forbidding combinations in restraint of trade provided the model for the federal Act. As Senator Sherman stated with respect to the proposed legislation: "It declares that certain contracts are against public policy, null and void. It does not announce a new principle of law, but applies old and well-recognized principles of the common law to the complicated jurisdiction of our State and Federal Government. Similar contracts in any State in the Union are now, by common or statute law, null and void."20
96
It is noteworthy that the body of state jurisprudence which formed the model for the Sherman Act coexisted with state laws permitting regulated industries to operate under governmental control in the public interest. Indeed, state regulatory laws long antedated the passage of the Sherman Act and had, prior to its passage, been upheld by this Court against constitutional attack.21 Such laws were an integral part of state efforts to regulate competition to which Congress turned for guidance in barring restraints of interstate commerce, and it is clear that those laws were left undisturbed by the passage of the Sherman Act in 1890. For, as congressional spokesmen expressly stated, there was no intent to "interfere with" state laws regulating domestic commerce or "invade the legislative authority of the several States. . . . "
97
As previously noted, the intent of the draftsmen of the Sherman Act not to intrude on the sovereignty of the States was coupled with a full and precise understanding of the narrow scope of congressional power under the Commerce Clause, as it was then interpreted by decisions of this Court. Subsequent decisions of the Court, however, have permitted the "jurisdictional" reach of the Sherman Act to expand along with an expanding view of the commerce power of Congress. See Hospital Building Co. v. Rex Hospital Trustees, 425 U.S. 738, 743, 96 S.Ct. 1848, 1852, 48 L.Ed.2d 338, and cases cited therein. These decisions, based on a determination that Congress intended to exercise all the power it possessed when it enacted the Sherman Act,22 have in effect allowed the Congress of 1890 the retroactive benefit of an enlarged judicial conception of the commerce power.23
98
It was this retroactive expansion of the jurisdictional reach of the Sherman Act that was in large part responsible for the advent of the Parker doctrine. Parker involved a program regulating the production of raisins within the State of California. Under the original understanding of the draftsmen of the Sherman Act, such in-state production, like in-state manufacturing, would not have been subject to the regulatory power of Congress under the Commerce Clause and thus not within the "jurisdictional" reach of the Sherman Act. See United States v. E. C. Knight Co., 156 U.S. 1, 15 S.Ct. 249, 39 L.Ed. 325. If the state of the law had remained static, the Parker problem would rarely, if ever, have arisen. As stated in Northern Securities Co. v. United States, 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 679, the operative premise would have been that the "Anti-Trust Act . . . prescribe(d) . . . a Rule for Interstate and international commerce, (not for domestic commerce,)" Id., at 337, 24 S.Ct., at 457. The relevant question would have been whether the anticompetitive conduct required or permitted by the state statute was in restraint of domestic or interstate commerce. If the former, the conduct would have been beyond the reach of the Sherman Act; if the latter, the conduct would probably have violated the Sherman Act, regardless of contrary state law, on the theory that "(n)o State can, by . . . any . . . mode, project its authority into other States, and across the continent, so as to prevent Congress from exerting the power it possesses under the Constitution over interstate and international commerce, or . . . to exempt its corporation engaged in interstate commerce from obedience to any rule lawfully established by Congress for such commerce." Id., at 345-346, 24 S.Ct., at 460.
99
But the law did not remain static. As one commentator has put it: "By 1942, when Parker v. Brown was decided, the interpretation and scope of the commerce clause had changed substantially. With the development of the 'affection doctrine' purely intrastate events" like state-mandated anticompetitive arrangements with respect to in-state agricultural production or in-state provision of utility services "could be regulated under the commerce clause if these events had the requisite impact on interstate commerce."24 This development created a potential for serious conflict between state statutes regulating commerce which, in 1890, would have been considered "domestic" but which, in 1942, were viewed as falling within the jurisdictional rea of the Sherman Act. To have held that state statutes requiring anticompetitive arrangements with respect to such commerce were pre-empted by the Sherman Act would, in effect, have transformed a generous principle of judicial construction namely the "retroactive" expansion of the jurisdictional reach of the Sherman Act to the limits of an expanded judicial conception of the commerce power into a transgression of the clearly expressed congressional intent not to intrude on the regulatory authority of the States.
100
The "state action" doctrine of Parker v. Brown, as clarified by Goldfarb, represents the best possible accommodation of this limiting intent and the post-1890 judicial expansion of the jurisdictional reach of the Sherman Act. Parker's basic holding that the Sherman Act did not intend to displace restraints imposed by the State acting as sovereign coincides with the expressed legislative goal not to "invade the legislative authority of the several States . . . ." Goldfarb clarified Parker by holding that private conduct, if it is to come within the state-action exemption, must be not merely "prompted" but "compelled" by state action. Thus refined, the doctrine performs the salutary function of isolating those areas of state regulation where the State's sovereign interest is, by the State's own judgment, at its strongest, and limits the exemption to those areas.25
101
Beyond this the Court cannot go without disregarding the purpose of the Sherman Act not to disrupt state regulatory laws.26 Congress, of course, can alter its original intent and expand or contra the categories of state law which may permissibly impose restraints on competition. For example, in 1937 Congress passed the Miller-Tydings Act which attached a proviso to § 1 of the Sherman Act permitting resale price maintenance contracts where such contracts were permitted by applicable state law. This proviso was interpreted in Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035, not to permit a State to enforce a law providing that All retailers within a State were bound by a resale price maintenance contract executed by any one retailer in the State. As the Court today notes, Parker and the legislative judgment embodied in the 1890 version of the Sherman Act would, standing alone, have seemed to immunize the state scheme. Ante, at 593. But Congress was thought to have struck a new balance in 1937 with respect to a specific category of state-imposed restraints. Accordingly, the Court in Schwegmann determined congressional intent concerning the permissible limits of state restraints with respect to resale price maintenance by reference to the later, and more specific, expression of congressional purpose.27
102
There has been no analogous alteration of the original intent regarding the area of state regulation at issue here. Indeed, to the extent subsequent congressional action is probative at all, it shows a continuing intent to defer to the regulatory authority of the States over the terms and conditions of in-state electric utility service. Thus, § 201(a) of the Federal Power Act, 16 U.S.C. § 824(a), provides in relevant part that "Federal regulation . . . (is) to extend only to those matters which are not subject to regulation by the States."
103
The Court's opinion simply ignores the clear evidence of congressional intent and substitutes its own policy judgment about the desirability of disregarding any facet of state economic regulation that it thinks unwise or of no great importance. In adopting this freewheeling approach to the language of the Sherman Act the Court creates a statutory simulacrum of the substantive due process doctrine I thought had been put to rest long ago. See Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93.28 For the Court's approach contemplates the selective interdiction of those anticompetitive state regulatory measures that are deemed not "central" to the limited range of regulatory goals considered "imperative" by the federal judiciary.
104
Henceforth, a state-regulated public utility company must at its peril successfully divine which of its countless and interrelated tariff provisions a federal court will ultimately consider "central" or "imperative." If it guesses wrong, it may be subjected to treble damages as a penalty for its compliance with state law.
**
Parts II and IV of this opinion are joined only by Mr. Justice BRENNAN, Mr. Justice WHITE, and Mr. Justice MARSHALL.
1
392 F.Supp. 1110 (ED Mich.1974).
2
513 F.2d 630 (CA6 1975).
3
Petitioner's complaint asserts that respondent's light-bulb-exchange program violates § 2 of the Sherman Act, 15 U.S.C. § 2, and § 3 of the Clayton Act, 15 U.S.C. § 14. In his brief in this Court, petitioner has also argued that the program constitutes unlawful tying violative of § 1 of the Sherman Act. The complaint seeks treble damages and an injunction permanently enjoining respondent from requiring the purchase of bulbs in connection with the sale of electrical energy. The complaint purports to be filed on behalf of all persons similarly situated, but the record contains no indication that the plaintiff moved for a class determination pursuant to Fed.Rule Civ.Proc. 23(c).
4
Respondent does not distribute fluorescent lights or high-intensity discharge lamps; if bulbs of those types were included, respondent's share of the market would only be about 23%.
5
Under respondent's practice, new residential customers are provided with bulbs in "such quantities as may be needed" for all of their permanent fixtures; thereafter, respondent replaces residential customers' burned out light bulbs in proportion to their estimated use of electricity for lighting. The customer incurs no direct charge for such bulbs at the time they are furnished to him, but normally turns in any burned-out bulbs to obtain a new supply.
6
See Mich.Comp.Laws §§ 460.551, 460.559 (1970).
7
Apparently many commercial customers use relatively large quantities of fluorescent lighting and therefore have less interest in the bulb-exchange program.
8
Of this amount, $2,363,328 was paid to the three principal manufacturers of bulbs from whom respondent made its purchases; the other $471,672 represented costs incurred in the use of respondent's personnel and facilities in carrying out the program.
9
According to respondent the effect of the program is to save consumers about $3 million a year, since the bulbs they now receive at a cost of $2,835,000 would cost them about $6 million in the retail market.
10
Mich.Comp.Laws § 460.6 (1970).
11
See Brief for Respondent, 11; Mich.Comp.Laws § 460.501 (1970).
12
"The California Agricultural Prorate Act authorizes the establishment, through action of state officials, of programs for the marketing of agricultural commodities produced in the state, so as to restrict competition among the growers and maintain prices in the distribution of their commodities to packers. The declared purpose of the Act is to 'conserve the agricultural wealth of the State' and to 'prevent economic waste in the marketing of agricultural products' of the state." 317 U.S., at 346, 63 S.Ct., at 311.
"The declared objective of the California Act is to prevent excessive supplies of agricultural commodities from 'adversely affecting' the market, and although the statute speaks in terms of 'economic stability' and 'agricultural waste' rather than of price, the evident purpose and effect of the regulation is to 'conserve agricultural wealth of the state' by raising and maintaining prices, but 'without permitting unreasonable profits to producers.' § 10." Id., at 355, 63 S.Ct., at 315.
13
Title 28 U.S.C. § 2281 has been consistently read by this Court as authorizing a three-judge court only when the state statute which is sought to be enjoined is of a general and statewide application. Moody v. Flowers, 387 U.S. 97, 101, 87 S.Ct. 1544, 1547, 18 L.Ed.2d 643.
14
Article I, § 8, cl. 3, of the United States Constitution provides:
"Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . ."
15
The Court also asked the parties to consider whether the Agricultural Adjustment Act, as amended, or any other Act of Congress, invalidated the California program. The supplemental briefs noted that the California program had been adopted with the collaboration of officials of the United States Department of Agriculture, and had been aided by loans from the Commodity Credit Corporation recommended by the Secretary of Agriculture. These facts were emphasized in portions of Mr. Chief Justice Stone's opinion discussing the Agricultural Adjustment Act and the Commerce Clause, see 317 U.S., at 357, 358-359, 368, 63 S.Ct., at 316, 317-318, 322, but were not mentioned in connection with the Court's discussion of the Sherman Act.
16
The first order entered in the Supreme Court Journal on Monday, May 11, 1942, provided:
"No. 1040. W. B. Parker, Director of Agriculture, et al., appellants, v. Porter L. Brown. This cause is restored to the docket for reargument on October 12 next. In their briefs and on the oral argument counsel for the parties are requested to discuss the questions whether the state statute involved is rendered invalid by the action of Congress in passing the Sherman Act, the Agricultural Adjustment Act as amended, or any other Act of Congress. The Solicitor General is requested to file a brief as amicus curiae and, if he so desires, to participate in the oral argument." Journal, O.T. 1941, p. 252.
17
The Honorable Earl Warren, later Chief Justice of the United States.
18
In the index to his supplemental brief, the California Attorney General outlined his discussion of the Sherman Act in these words:
"The Sherman Anti-Trust law and the California raisin program... 35
"1. Is a state subject to the Sherman Act?... 35
"2. Does the state seasonal program for raisins violate the provisions of the Sherman Act?... 48
"(a) The Sherman Act is circumscribed by the rule of reason... 53
"(b) Federal legislation as exempting state program from anti-trust laws... 60
"3. May the California raisin program be enjoined in the present action?... 64"
19
At p. 59 of its brief, the Government stated:
"The Sherman Act does not in terms define its scope in so far as it applies to the activities of state governments. But nothing in the Act precludes its application to programs sponsored by the states. Sections 1 and 2 prohibit unlawful conduct by 'persons,' and the word 'person,' as defined in Section 7, in some connections at least, may include a state. Georgia v. Evans, 316 U.S. 159 (62 S.Ct. 972, 86 L.Ed. 1346).
"But the question we face here is not whether California or its officials have violated the Sherman Act, but whether the state program interferes with the accomplishment of the objectives of the federal statute."
20
At p. 63 of its brief, the Government stated:
"A state statute permitting, or requiring, dealers in a commodity to combine so as to limit the supply or raise the price of a subject of interstate commerce would clearly be void. The question here is whether a state may itself undertake to control the supply and price of a commodity shipped in interstate commerce or otherwise restrain interstate competition through a mandatory regulation."
21
"But it is plain that the prorate program here was never intended to operate by force of individual agreement or combination. It derived its authority and its efficacy from the legislative command of the state and was not intended to operate or become effective without that command. We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress.
"The Sherman Act makes no mention of the state as such, and gives no hint that it was intended to restrain state action or official action directed by a state.
"There is no suggestion of a purpose to restrain state action in the Act's legislative history. The sponsor of the bill which was ultimately enacted as the Sherman Act declared that it prevented only 'business combinations.' 21 Cong.Rec. 2562, 2457; see also (Id.,) at 2459, 2461. That its purpose was to suppress combinations to restrain competition and attempts to monopolize by individuals and corporations, abundantly appears from its legislative history.
"The state in adopting and enforcing the prorate program made no contract or agreement and entered into no conspiracy in restraint of trade or to establish monopoly but, as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit. Olsen v. Smith, 195 U.S. 332, 344-(3)45, 25 S.Ct. 52, 54, 55, 49 L.Ed. 224; cf. Lowenstein v. Evans, C.C., 69 F. 908, 910." 317 U.S., at 350-352, 63 S.Ct., at 313.
22
See n. 15, supra.
23
See Monroe v. Pape, 365 U.S. 167, 172-187, 81 S.Ct. 473, 476-484, 5 L.Ed.2d 492; Adickes v. Kress & Co., 398 U.S. 144, 188-234, 90 S.Ct. 1598, 1619-1643, 26 L.Ed.2d 142 (Brennan, J., concurring in part and dissenting in part).
24
In his three-page discussion of the Sherman Act issue in Parker v. Brown, Mr. Chief Justice Stone made 13 references to the fact that state action was involved. Each time his language was carefully chosen to apply only to official action, as opposed to private action approved, supported, or even directed by the State. Thus, his references were to (1) "the legislative command of the state," and (2) "a state or its officers or agents from activities directed by its legislature," 317 U.S., at 350, 63 S.Ct., at 313; and to (3) "a state's control over its officers and agents," (4) "the state as such," (5) "state action or official action directed by a state," and (6) "state action," Id., at 351, 63 S.Ct., at 313; and to (7) "the state command to the Commission and to the program committee," (8) "state action," (9) "the state which has created the machinery for establishing the prorate program," (10) "it is the state, acting through the Commission, which adopts the program . . . ," (11) "(t)he state itself exercises its legislative authority," (12) "(t)he state in adopting and enforcing the prorate program . . . ," and finally (13) "as sovereign, imposed the restraint as an act of government . . . ," Id., at 352, 63 S.Ct., at 314.
The cumulative effect of these carefully drafted references unequivocally differentiates between official action, on the one hand, and individual action (even when commanded by the State), on the other hand.
25
Indeed, in Parker v. Brown itself, there was significant private participation in the formulation and effectuation of the proration program. As the Court pointed out, approval of the program upon referendum by a prescribed number of producers was one of the conditions for effectuating the program. See Ibid.
26
"It cannot be said that any State may give a corporation, created under its laws, authority to restrain interstate or international commerce against the will of the nation as lawfully expressed by Congress." Northern Securities Co. v. United States, 193 U.S. 197, 346, 24 S.Ct. 436, 460, 48 L.Ed. 679.
27
In the Parker opinion itself, the Court pointed out that a State does not give immunity to those who violate the Sherman Act "by declaring that their action is lawful." 317 U.S., at 351, 63 S.Ct., at 314.
28
"Respondents' arguments, at most, constitute the contention that their activities complemented the objective of the ethical codes. In our view that is not state action for Sherman Act purposes. It is not enough that, as the County Bar puts it, anticompetitive conduct is 'prompted' by state action; rather, anticompetitive activities must be compelled by direction of the state acting as a sovereign." Goldfarb v. Virginia State Bar, 421 U.S. 773, 791, 95 S.Ct. 2004, 2015, 44 L.Ed.2d 572.
29
See Continental Ore Co. v. Union Carbide 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777; cf. also Union Pacific R. Co. v. United States, 313 U.S. 450, 61 S.Ct. 1064, 85 L.Ed. 1453, cited in Parker v. Brown, supra, 317 U.S., at 352, 63 S.Ct., at 314.
30
Thus, although the private decision to enforce a statewide fair trade program was not only approved by the State, but actually would have been ineffective without the statutory command to nonsigners to adhere to the prices set by the plaintiff, the rationale of Parker v. Brown did not immunize the restraint. Quite the contrary, in his opinion for the Court Mr. Justice Douglas cited Parker For the proposition that private conduct was forbidden by the Sherman Act even though the State had compelled retailers to follow a parallel price policy. He said: "Therefore, when a state compels retailers to follow a parallel price policy, it demands private conduct which the Sherman Act forbids. See Parker v. Brown, 317 U.S. 341, 350, 63 S.Ct. 307, 87 L.Ed. 315." 341 U.S., at 389, 71 S.Ct., at 748.
31
We recently described an analogous exercise of a public utility's power to make business decisions subject to Commission approval in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477:
"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, does not make its action in doing so 'state action' for purposes of the Fourteenth Amendment." Id., at 357, 95 S.Ct., at 456. (Footnote omitted.)
32
Nor is such a conclusion even arguably inconsistent with the underlying rationale of Parker v. Brown. For in that case California required every raisin producer in the State to comply with the proration program, whereas Michigan has never required any utility to adopt a lamp-exchange program.
33
As Mr. Justice Stewart pointed out in his dissenting opinion in Otter Tail Power Co. v. United States, 410 U.S. 366, 389, 93 S.Ct. 1022, 1035, 35 L.Ed.2d 359, the "very reason for the regulation of private utility rates by state bodies and by the Commission is the inevitability of a monopoly that requires price control to take the place of price competition."
34
Commenting on a possible conflict between federal regulatory policy and federal antitrust policy we have repeatedly said " '(r)epeal (of the antitrust laws) is to be regarded as implied only if necessary to make the . . . (Act) work, and even then only to the minimum extent necessary.' " Id., at 391, 93 S.Ct., at 1036, quoting Silver v. New York Stock Exchange, 373 U.S. 341, 357, 83 S.Ct. 1246, 1257, 10 L.Ed.2d 389.
35
Indeed, since our decision in Otter Tail Power Co. v. United States, supra, there can be no doubt about the proposition that the federal antitrust laws are applicable to electrical utilities. Although there was dissent from the particular application of the statute in that case, there was no dissent from the basic proposition that such utilities must obey the federal antitrust laws.
36
Respondent does not argue that state regulation provides a stronger justification for an implied exemption than federal regulation. On the contrary, respondent relies heavily on Gordon v. New York Stock Exchange, 422 U.S. 659, 95 S.Ct. 2598, 45 L.Ed.2d 463, in which the Court upheld the fixed commissions of the stock exchange as an integral part of the effective operation of the Securities Exchange Act of 1934. The inapplicability of that case is manifest from Mr. Justice Stewart's brief concurring opinion in which he stated:
"The Court has never held, and does not hold today, that the antitrust laws are inapplicable to anticompetitive conduct simply because a federal agency has jurisdiction over the activities of one or more of the defendants. An implied repeal of the antitrust laws may be found only if there exists a 'plain repugnancy between the antitrust and regulatory provisions.' United States v. Philadelphia Nat. Bank, 374 U.S. 321, 351, 83 S.Ct. 1715, 1734, 10 L.Ed.2d 915.
"The mere existence of the Commission's reserve power of oversight with respect to rules initially adopted by the exchanges, therefore, does not necessarily immunize those rules from antitrust attack. . . . The question presented by the present case, therefore, is whether exchange rules fixing minimum commission rates are 'necessary to make the Securities Exchange Act work.' " Id., at 692-693, 95 S.Ct., at 2616.
The lamp-supply program is by no means comparably imperative in the continued effective functioning of Michigan's regulation of the utilities industry.
37
See n. 34, Supra. Recent cases make it clear that the relevant "aspect of the agency's jurisdiction must be sufficiently central to the purposes of the enabling statute so that implied repeal of the antitrust laws is 'necessary to make the (regulatory scheme) work.' " Robinson, Recent Antitrust Developments: 1975, 31 Record of N.Y.C.B.A. 38, 57-58 (1976).
In United States v. National Assn. of Securities Dealers, 422 U.S. 694, 719-720, 95 S.Ct. 2427, 2443, 45 L.Ed.2d 486, the Court pointed out:
"Implied antitrust immunity is not favored, and can be justified only by a convincing showing of clear repugnancy between the antitrust laws and the regulatory system. See, E, g., United States v. Philadelphia Nat. Bank, 374 U.S., at 348, 83 S.Ct. 1715; United States v. Borden Co., 308 U.S. 188, 197-206, 60 S.Ct. 182, 84 L.Ed. 181 (1939)."
These cases are, of course, consistent with the "cardinal rule," applicable to legislation generally, 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.
38
Of course, the absence of an exemption from the antitrust laws does not mean that those laws have been violated.
39
It is this concern which has repeatedly prompted the introduction of bills which, if adopted, would make the award of treble damages in antitrust litigation discretionary rather than mandatory. See Report of the Attorney General's National Committee to Study the Antitrust Laws 378-380 (1955). See also, E. g., H.R. 978, 85th Cong., 1st Sess. (1957); H.R. 190, 87th Cong., 1st Sess. (1961).
40
"As a charter of freedom, the Act has a generality and adaptability comparable to that found to be desirable in constitutional provisions. It does not go into detailed definitions which might either work injury to legitimate enterprise or through particularization defeat its purposes by providing loopholes for escape. The restrictions the Act imposes are not mechanical or artificial. Its general phrases, interpreted to attain its fundamental objects, set up the essential standard of reasonableness. They call for vigilance in the detection and frustration of all efforts unduly to restrain the free course of interstate commerce, but they do not seek to establish a mere delusive liberty either by making impossible the normal and fair expansion of that commerce or the adoption of reasonable measures to protect it from injurious and destructive practices and to promote competition upon a sound basis." Appalachian Coals, Inc. v. United States, 288 U.S. 344, 359-360, 53 S.Ct. 471, 474, 77 L.Ed. 825.
41
"The threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe is whether the activity is required by the State acting as sovereign. Parker v. Brown, 317 U.S., at 350-352, 63 S.Ct. 307; Continental Co. v. Union Carbide, 370 U.S. 690, 706-707, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962)." 421 U.S., at 790, 95 S.Ct., at 2015.
42
Indeed, it did not even occur to the plaintiff that the state officials might have violated the Sherman Act; that question was first raised by this Court.
43
Actually the reference was primarily to United States v. Rock Royal Co-op., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446, and only secondarily to Parker. See 365 U.S., at 136 n. 15, 81 S.Ct., at 529.
44
"We accept, as the starting point for our consideration of the case, the same basic construction of the Sherman Act adopted by the courts below that no violation of the Act can be predicated upon mere attempts to influence the passage or enforcement of laws. It has been recognized, at least since the landmark decision of this Court in Standard Oil Co. v. United States (221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619), that the Sherman Act forbids only those trade restraints and monopolizations that are created, or attempted, by the acts of 'individuals or combinations of individuals or corporations.' Accordingly, it has been held that where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the Act can be made out." (Rock Royal and Parker are then cited in the footnote which is omitted.) 365 U.S., at 135-136, 81 S.Ct., at 528.
45
Mr. Justice STEWART's analysis rests largely on the dubious assumption that if each of several steps in the implementation of an anticompetitive program is lawful, the entire program must be equally lawful.
1
The Court expressly stated in Schwegmann: "The fact that a state authorizes the price fixing does not, of course, give immunity to this scheme, absent approval by Congress." And again: "(W)hen a state compels retailers to follow a parallel price policy, it demands private conduct which the Sherman Act forbids." 341 U.S., at 386, 389, 71 S.Ct., at 748.
2
The argument that New Jersey law exempted Northern Securities Company from the Sherman Act was thoroughly canvassed in the plurality opinion. 193 U.S., at 344-351, 24 S.Ct., at 459-462. It was rejected for the reason "that no State can endow any of its corporations, or any combination of its citizens, with authority to restrain interstate or international commerce, or to disobey the national will as manifested in legal enactments of Congress." Id., at 350, 24 S.Ct., at 462.
3
In passing, we may cast at least a sidelong glance at a related area of federal trade regulation that of the patent laws. Although the federal statute is no more explicit on the point than is the Sherman Act, see 35 U.S.C. § 100 Et seq., it clearly pre-empts state laws that purport either to expand on or to infringe the federal patent monopoly. See, E. g., Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969); Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); Compco Corp. v. Day-Brite Lighting, 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964).
4
The McCarran-Ferguson Act was passed in reaction to the holding in United States v. Underwriters Assn., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944), that the business of insurance is "commerce" within the meaning of the Sherman Act. Congress' expressed concern was that the application of that Act would "greatly impair or nullify the regulation of insurance by the States," bringing to a halt their "experimentation and investigation" in the area. The Act was vigorously endorsed by Governors and insurance commissioners of "almost all of the States." The Justice Department, in opposing the McCarran-Ferguson Act, specifically argued that Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), made the legislation unnecessary because it immunized the insurance business insofar as it was regulated by the States. Congress was not so sure:
"Parker v. Brown dealt with a State commission authorized by State statute to enforce a program in conformity with, if not supplementary to, a Federal statute. Obviously, all State regulation concerning insurance does not and would not fall in such a category." S.Rep. No. 1112, 78th Cong., 2d Sess., 5 (1944). See also S.Rep. No. 20, 79th Cong., 1st Sess., 1-3 (1945); H.R.Rep. No. 873, 78th Cong., 1st Sess., 7 (1943); H.R.Rep. No. 143, 79th Cong., 1st Sess., 4 (1945).
5
The approach described in the text is entirely consistent with the result reached in Parker v. Brown. Wildly fluctuating agricultural prices are a prime candidate for some collective scheme that interrupts free competition in order to bring badly needed stability; under the State's close supervision, as was the case in Parker, the scheme seems entirely reasonable. I see no reason to disapprove the holding of Parker, therefore, and to the extent that the plurality, by stressing the identity of the state defendants in that case, intimates that a different result might have been reached had the raisin growers themselves been sued, I cannot agree.
Neither can I agree with the dissent, however, that Parker must be taken to stand for the broad proposition that a State can
immunize any conduct from the application of the Sherman Act. It is true, as the dissent points out, that there are statements arguably to that effect in Parker, but the opinion is hardly unambiguous on the point. The Court also observed in that case that "a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful." 317 U.S., at 351, 63 S.Ct., at 314. Moreover, if we must choose between Parker's more categorical statements and the seemingly contrary statements in Schwegmann And Northern Securities, see nn. 1 and 2, Supra, I prefer the latter, as more in keeping with the actual holdings of those cases.
6
Mr. Justice STEVENS states that there may be cases in which "the State's participation in a decision (to adopt the challenged restraint) is so dominant that it is unfair to hold a private party responsible for his conduct in implementing it." Ante, at 594-595. I agree that a defense based on fairness may be available. I would not, however, rule it out in this case, as the Court's opinion does. The parties, like the court below, so far have addressed themselves only to the question whether petitioner's suit is completely barred by Parker v. Brown and the Michigan Public Service Commission's approval of the challenged tie-in. I would confine our present decision to that question alone, leaving consideration of a fairness defense to the lower courts on remand, and making only these two further observations:
First, I take it that a defense based on fairness would be a defense to a damages recovery but not injunctive relief. The latter, of course, presents no danger of unfairness. Moreover, as Mr. Justice STEVENS implies by his emphasis on not unfairly holding a
private party "responsible," the defense rests on the theory, not that the challenged restraint is legal, but that since the defendant has committed no voluntary act in implementing it, he cannot be said to have violated any law. The same would not be true of acts following a judgment that the restraint is in fact illegal, and the state law to that extent invalid.
Second, I would hope that consideration will be given on remand to allowing a defense against damages wherever the conduct on which such damages would be based was required by state law. Such a rule would comport with the theory that a defendant should not be held "responsible" in damages for conduct as to which he had no choice, by which I do not mean to rule out other possible grounds for such a rule. See Posner, The Proper Relationship Between State Regulation and the Federal Antitrust Laws, 49 N.Y.U.L.Rev. 693, 728-732 (1974). It would also eliminate what seems to me the extremely unfair possibility that during a particular period and it could be a regulatory lag during which the regulatee was attempting to Change the state mandate the regulatee could be required by state law to conform to a course of conduct for which he was all the while accumulating treble-damages liability under federal law.
1
Posner, The Proper Relationship Between State Regulation and the Federal Antitrust Laws, 49 N.Y.U.L.Rev. 693, 728 (1974).
2
Goldfarb v. Virginia State Bar, 421 U.S. 773, 788, 95 S.Ct. 2004, 2014, 44 L.Ed.2d 572.
3
The progenitor of that doctrine in this Court was Olsen v. Smith, 195 U.S. 332, 25 S.Ct. 52, 49 L.Ed. 224, a decision relied on by Parker to support the
proposition that when a State, acting as sovereign, imposes a restraint on commerce, that restraint does not violate the Sherman Act. Parker v. Brown, 317 U.S., at 352, 63 S.Ct., at 314. Olsen involved a challenge to the validity of a Texas law fixing the charges of pilots operating in the port of Galveston and prohibiting all but duly commissioned pilots from engaging in the pilotage business. The Court rejected the argument that the Texas pilotage statutes were "repugnant . . . to the laws of Congress forbidding combinations in restraint of trade or commerce," 195 U.S., at 339, 25 S.Ct., at 53:
"The contention that because the commissioned pilots have a monopoly of the business, and by combination among themselves exclude all others from rendering pilotage services, is also but a denial of the authority of the State to regulate, since if the State has the power to regulate, and in so doing to appoint and commission, those who are to perform pilotage services, it must follow that no monopoly or combination in a legal sense can arise from the fact that the duly authorized agents of the State are alone allowed to perform the duties devolving upon them by law. When the propositions just referred to are considered in their ultimate aspect they amount simply to the contention, not that the Texas laws are void for want of power, but that they are unwise. If an analysis of those laws justified such conclusion which we do not at all imply is the case the remedy is in Congress, in whom the ultimate authority on the subject is vested, and cannot be judicially afforded by denying the power of the State to exercise its authority over a subject concerning which it has plenary power until Congress has seen fit to act in the premises." Id., at 344-345, 25 S.Ct., at 55.
4
If Parker v. Brown, supra, could be circumvented by the simple expedient of suing the private party against whom the State's "anticompetitive" command runs, then that holding would become an
empty formalism, standing for little more than the proposition that Porter Brown sued the wrong parties.
Mr. Justice BLACKMUN in a separate opinion today states that he sees "no reason to disapprove the holding of Parker " Ante, at 613 n. 5, but then proceeds to do precisely that. The holding in Parker was that "(t)he state in adopting and enforcing the prorate program . . . imposed (a) restraint as an act of government which the Sherman Act did not undertake to prohibit." 317 U.S., at 352, 63 S.Ct., at 314. Mr. Justice BLACKMUN's position is that the Sherman Act Does prohibit all state-imposed restraints which do not satisfy the Sherman Act's "rule of reason" a view quite different from the holding in Parker. The fact that the Result in Parker could have been reached by a different route by a holding, for instance, that the prorate restraint was "reasonable" within the meaning of the Sherman Act or was impliedly exempted by the Agricultural Marketing Agreement Act of 1937 is simply irrelevant.
I am puzzled by Mr. Justice BLACKMUN's willingness to emasculate Parker, which the Court indicated to have continued vitality just this Term. See Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770, 96 S.Ct. 1817, 1829-1830, 48 L.Ed.2d 346. It seems to me that such a step is inconsistent not only with the legislative history of the Sherman Act but also with well-settled principles of stare decisis Applicable to this Court's construction of federal statutes. See Edelman v. Jordan, 415 U.S. 651, 671 n. 14, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662. If those principles preclude the reconsideration of an antitrust exemption which is in every sense an "aberration" and an "anomaly," Flood v. Kuhn, 407 U.S. 258, 282, 92 S.Ct. 2099, 2112, 32 L.Ed.2d 728, then A fortiori they preclude the re-examination of an exemption that coincides with a clear expression of congressional intent.
5
A different approach is, of course, called for in interpreting this Court's summary dispositions of appeals. See generally Hicks v. Miranda, 422 U.S. 332, 345 n. 14, 95 S.Ct. 2281, 2290, 45 L.Ed.2d 223; Port Authority Bondholders Protective Comm. v. Port of New York Authority, 387 F.2d 259, 262 (CA2).
6
California's argument began with a statement of the principle that the Federal Government and the States "sister sovereignties," Supplemental Brief for Appellants 35 in Parker v. Brown, O.T. 1942, No. 46 are each "supreme" when legislating "within their respective spheres." "The subject of Federal power is still 'commerce,' not all commerce, but commerce with foreign nations and among the several states." Id., at 35-37. Incorporating by explicit reference its preceding argument with respect to whether the Federal Agricultural Adjustment Act of 1938 pre-empted the California statute, Id., at 38, and proceeding from the premise that the subject matter of the California law was intrastate commerce within the jurisdiction of the State, California contended that "it should never be held that Congress intends to supersede or suspend the exercise of the police powers of the States unless its purpose to effect that result is clearly manifested." Ibid. California added that "(s)uch an intent should be even more clear and express when it serves not only to suspend the police powers, but to subject the sovereignty of the State to the inhibition and penalties of Congressional action." Id., at 38-39.
The plurality's position today seems to be that because the State of California placed particular emphasis on the fact that the proscriptions of the Sherman Act, if applicable, would run directly against the State, California's argument in the first part of its brief was simply and solely that "Congress never intended to subject a sovereign State to the provisions of the Sherman Act. . . ." Ante, at 588. Yet, as the preceding quotations show, California's argument in the first part of its brief dovetailed two interrelated themes: First, that state regulation of intrastate commerce was not pre-empted by the Sherman Act and, second, that the framers of the Sherman Act did not intend its proscriptions to run directly against the sovereign States. It was the first of these themes that California deemed primary. Near the close of the first part of California's brief appeared the following passage:
"To hold the State within the prohibition of the Sherman Act in the present instance would result in prohibiting it from exercising its otherwise valid police powers. This Court has repeatedly and emphatically stated that 'it should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the State, even when it may do so, unless its purpose to effect that result is clearly manifested.' " Supplemental Brief for Appellants 47-48 in Parker v. Brown, O.T. 1942, No. 46 (footnote omitted).
7
This distinction was properly drawn, as is apparent from decisions in the labor law context. A State or political subdivision thereof is not normally subject to the prohibitions of the National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S.C. § 151 Et seq. See, E. g., NLRB v. Natural Gas Utility Dist., 402 U.S. 600, 91 S.Ct. 1746, 29 L.Ed.2d 206. But it certainly does not follow that sovereign enactments of the State may not be deemed pre-empted by the federal legislation. San Diego Unions v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775; Garner v. Teamsters, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228.
8
The Solicitor General began his analysis with the following statement:
"A state statute permitting, or requiring, dealers in a commodity to combine so as to limit the supply or raise the price of a subject of interstate commerce would clearly be void. The question here is whether a state may itself undertake to control the supply and price of a commodity shipped in interstate commerce or otherwise restrain interstate competition through a mandatory regulation." Brief for United States as Amicus Curiae 63 in Parker v. Brown, O.T. 1942, No. 46.
He then acknowledged that "(i)t seems clear that Congress, when it enacted the statute, did not intend to deprive the states of their normal 'police' powers over business and industry. . . . For example, in the field of public utilities, a state can undoubtedly regulate rates without running afoul of the Sherman Act notwithstanding the fact that the rate regulation may embrace interstate commerce." Id., at 63-64 (footnotes and citations omitted). But, the Solicitor General continued, "(a)lthough Congress plainly did not regard local laws in these fields as incompatible with the Sherman Act, we believe that the same cannot be said when the state statute is Designed directly to control the competitive aspects of an industry in a manner which will have more than local effect." Id., at 64-65. This was the critical portion of the Solicitor General's argument, which sought to draw a delicate distinction between acceptable police power legislation, such as public utility regulation, and pre-empted police power legislation, such as that designed explicitly to suppress competition affecting interstate commerce.
9
The only exception is where the attempt to influence state regulation is a "sham" aimed at "harass(ing) and deter(ring) . . . competitors from having 'free and unlimited access' to the agencies and courts . . . ." California Motor Transport Co. v. Trucking, Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 614, 30 L.Ed.2d 642.
10
The Court's reliance on Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477, is misplaced. There the Court held that a utility's discontinuance of service to a customer for nonpayment of bills was not "state action" sufficient to trigger the protections of the Due Process Clause of the Fourteenth Amendment. The petitioner had argued that because the State Public Utility Commission had approved that practice as a part of the respondent's general tariff, the termination was "state action" for Fourteenth Amendment purposes. Id., at 354, 95 S.Ct., at 455. The Court disagreed, holding as follows:
"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, does not make its action in doing so 'state action' for purposes of the Fourteenth Amendment." Id., at 357, 95 S.Ct., at 456 (footnote omitted).
This constitutional holding has no bearing on whether a utility's action in compliance with a tariff which it proposed is exempt from Sherman Act liability. The latter is a question of legislative intent, not constitutional law, and must be answered on the basis of a separate line of authority namely, decisions such as Parker and Noerr which have construed the Sherman Act.
11
I disagree with THE CHIEF JUSTICE's conclusion that Michigan's policy is "neutral" with respect to whether a utility should have a lamp-exchange program. See n. 26, Infra. Moreover, I think it is apparent that insistence on statutory articulation of a state "purpose" to regulate activities performed incident to the provision of a "natural monopoly" service will lead to serious interference with state regulation. See Ibid.
12
As the Court noted in Noerr, the scheme at issue in Parker required popular initiative. 365 U.S., at 137-138, n. 17, 81 S.Ct., at 529. And as it further noted, Parker itself expressly rejected the argument that the necessity for private initiative affected the "program's validity under the Sherman Act . . . ." Id., at 137, 81 S.Ct., at 529.
13
The Court seems to indicate at one point that it would be improper to "superimpose" antitrust liability on state regulatory schemes aimed at Suppressing competition and Raising prices. See Ante, at 595 ("Unquestionably there are examples of economic regulation in which the very purpose of the government control is to avoid the consequences of unrestrained competition. Agricultural marketing programs, such as that involved in Parker, were of that character"). But some state regulation, the Court continues, aims not at suppressing competition, but rather at duplicating the effects of competition I. e., keeping prices down. With respect to state regulation of the latter type, the state scheme will not afford an exemption to the extent the regulated party is engaged in "business activity in competitive areas of the economy." Ante, at 596 (footnote omitted).
This rationale will not bear its own weight. If compliance with a state program aimed at Suppressing competition in nonmonopoly industries I. e., raising production cannot give rise to Sherman Act liability, then surely compliance with a state program aimed at controlling the terms and conditions of service performed incident to the provision of a "natural monopoly" product cannot give rise to treble damages.
14
Slater, Antitrust and Government Action: A Formula for Narrowing Parker v. Brown, 69 Nw.U.L.Rev. 71, 84 (1974). See, E. g., 20 Cong.Rec. 1169 (1889) (remarks of Sen. Reagan); Id., at 1458 (remarks of Sen. George); 21 Cong.Rec. 2467 (1890) (remarks of Sen. Hiscock); Id., at 2469-2470 (remarks of Sen. Reagan); Id., at 2566 (remarks of Sen. Stewart); Id., at 2567 (remarks of Sen. Hoar); Id., at 2600 (remarks of Sen. George).
15
Hospital Building Co. v. Rex Hospital Trustees, 425 U.S. 738, 743 n. 2, 96 S.Ct. 1848, 1852, 48 L.Ed.2d 338.
16
H.R.Rep. No. 1707, 51st Cong., 1st Sess., 1 (1890) (emphasis added).
17
20 Cong.Rec. 1167 (1889).
18
21 Cong.Rec. 2456 (1890) (emphasis added).
19
Id., at 2460.
20
Id., at 2456.
21
See Munn v. Illinois, 94 U.S. 113, 125, 24 L.Ed. 77 ("Under (the police) powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, &c., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. To this day, statutes are to be found in many of the States upon some or all these subjects; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property").
22
E. g., United States v. Frankfort Distilleries, 324 U.S. 293, 298, 65 S.Ct. 661, 664, 89 L.Ed. 951; United States v. Underwriters Assn., 322 U.S. 533, 558, 64 S.Ct. 1162, 1176, 88 L.Ed. 1440; Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 435, 52 S.Ct. 607, 609, 76 L.Ed. 1204. See also United States v. American Bldg. Maint. Industries, 422 U.S. 271, 278, 95 S.Ct. 2150, 2155, 45 L.Ed.2d 177; Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 194-195, 95 S.Ct. 392, 398-399, 42 L.Ed.2d 378.
23
See Hospital Building Co. v. Rex Hospital Trustees, 425 U.S., at 743, 96 S.Ct., at 1852 n. 2; Gulf Oil Corp. v. Copp Paving Co., supra, 419 U.S., at 201-202, 95 S.Ct., at 401-402; Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 229-235, 68 S.Ct. 996, 1002-1006, 92 L.Ed. 1328.
24
Slater, Supra, n. 14, at 85.
25
Mr. Justice BLACKMUN expresses the view that the Court answered the question of "what was to be the result if the expanding ambit of the Sherman Act should bring it into conflict with inconsistent state law" in Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035, and that the answer it gave was that Any state regulatory statute "inconsistent" with the judicially expanded Sherman Act was pre-empted. Ante, at 606. But the opinion in Schwegmann which did not purport to modify or overrule Parker is most plausibly read as resting on a post-1890 expression of congressional intent, the Miller-Tydings Act. See Infra, at 639. Even assuming, however, that Schwegmann conflicted with Parker, then surely the most significant aspect of that conflict is that Congress did not allow it to persist, as Schwegmann was soon legislatively overruled by the enactment of the McGuire bill, 66 Stat. 632, 15 U.S.C. §§ 45(a)(2)-(5).
26
The Court states at one point that the omission of a "direct reference to light bulbs" in the statute creating the Michigan Public Service Commission indicates that the State's policy is "neutral on the question whether a utility should, or should not, have such a program." Ante, at 584, 585. This statement seems to suggest that the Court considers the specificity with which a state legislature deals with particular regulatory matters to be relevant in determining whether agency action respecting such matters represents a sovereign choice, entitled to deference under the Sherman Act.
This suggestion overlooks the fact that Michigan's policy, far from being "neutral," is, as announced in Mich.Comp.Laws § 460.6 (1970), to vest an expert agency "with complete power and jurisdiction to regulate all public utilities in the state . . . ." That agency is "vested with power and jurisdiction to regulate all rates, fares, fees, charges, Services, rules, Conditions of service and all other matters pertaining to the formation, operation or direction of such public utilities. It is further granted the power and jurisdiction to hear and pass upon all matters pertaining to or necessary or incident to such regulation of all public utilities, including electric light and power companies . . . ." Ibid. (emphasis added).
If a state legislature can ensure antitrust exemption only by eschewing such broad delegation of regulatory authority and incorporating regulatory details into statutory law, then there is a very great risk that the State will be prevented from regulating effectively. For as this Court has repeatedly observed in another context, "(d)elegation . . . has long been recognized as necessary in order that the exertion of legislative power does not become a futility. . . . (T)he effectiveness of both the legislative and administrative processes would become endangered if (the legislature) were under the . . . compulsion of filling in the details beyond the liberal prescription (of requiring the making of 'just and reasonable' rates and regulating in the 'public interest') here. Then the burdens of minutiae would be apt to clog the administration of the law and deprive the agency of that flexibility and dispatch which are its salient virtues." Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398, 60 S.Ct. 907, 915, 84 L.Ed. 1263.
27
The decision in Schwegmann rested primarily on a detailed analysis of the legislative history of the Miller-Tydings Act. 341 U.S., at 390-395, 71 S.Ct., at 748-751.
28
See Verkuil, State Action, Due Process and Antitrust: Reflections on Parker v. Brown, 75 Col.L.Rev. 328 (1975).
| 78
|
49 L.Ed.2d 1022
96 S.Ct. 3141
428 U.S. 397
BUFFALO FORGE CO., Petitioner,v.UNITED STEELWORKERS OF AMERICA, AFL-CIO, et al.
No. 75-339.
Argued March 24, 1976.
Decided July 6, 1976.
Syllabus
After petitioner employer's "office clerical-technical" (O&T) employees went on strike and picketed petitioner's plants during negotiations for a collective-bargaining contract, petitioner's production and maintenance (P&M) employees, who are represented by respondent unions, honored the O&T picket lines and stopped work in support of the sister unions representing the O&T employees. Petitioner then filed suit against respondents under § 301(a) of the Labor Management Relations Act, claiming that the P&M employees' work stoppage violated the no-strike clause in the collective-bargaining contracts between petitioner and respondents, and that the question whether such work stoppage violated the no-strike clause was arbitrable under the grievance and arbitration provisions of the contracts for settling disputes over the interpretation and application of each contract. Petitioner sought damages, injunctive relief, and an order directing respondents to arbitrate such question. The District Court, concluding that the work stoppage was the result of P&M employees' engaging in a sympathy strike in support of the striking O&T employees, held that it was prohibited from issuing an injunction by § 4 of the Norris-LaGuardia Act because the P&M employees' strike was not an "arbitrable grievance" and hence was not within the "narrow" exception to the Norris-LaGuardia Act established in Boys Markets v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199. The Court of Appeals affirmed. Held: The District Court was not empowered to enjoin the P&M employees' sympathy strike pending the arbitrator's decision as to whether the strike was forbidden by the no-strike clause. Pp. 404-413.
(a) The strike was not over any dispute between respondents and petitioner that was even remotely subject to the arbitration provisions of the collective-bargaining contract, but was a sympathy strike in support of sister unions negotiating with petitioner with neither the purpose nor the effect of denying or evading an obligation to arbitrate or of depriving petitioner of its bargain. Boys Markets, supra, distinguished. Pp. 409.
(b) Nor was an injunction authorized solely because it was alleged that the sympathy strike violated the no-strike clause, since, although a § 301 suit may be brought against strikes that breach collective-bargaining contracts, this does not mean that federal courts may enjoin contract violations despite the Norris-LaGuardia Act. P. 409.
(c) While the issue whether the sympathy strike violated the no-strike clause was arbitrable, it does not follow that the District Court was empowered not only to order arbitration but also to enjoin the strike pending the arbitrator's decision, since if an injunction could so issue a court could enjoin any alleged breach of a collective-bargaining contract pending the exhaustion of the applicable grievance and arbitration procedures, thus cutting deeply into the Norris-LaGuardia Act's policy and making courts potential participants in a wide range of arbitrable disputes under many collective-bargaining contracts, not just for the purpose of enforcing promises to arbitrate, but for the purpose of preliminarily dealing with the factual and interpretative issues that are subjects for the arbitrator. Pp. 409-412.
517 F.2d 1207, affirmed.
Jeremy V. Cohen for petitioner.
George H. Cohen, Bredhoff, Cushman, Gottesman & Cohen, Washington, D.C., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The issue for decision is whether a federal court may enjoin a sympathy strike pending the arbitrator's decision as to whether the strike is forbidden by the express no-strike clause contained in the collective-bargaining contract to which the striking union is a party.
2
* The Buffalo Forge Co. (employer) operates three separate plant and office facilities in the Buffalo, N.Y., area. For some years production and maintenance (P&M) employees at the three locations have been represented by the United Steelworkers of America, AFL-CIO, and its Local Unions No. 1874 and No. 3732 (hereafter sometimes collectively Union). The United Steelworkers is a party to the two separate collective-bargaining agreements between the locals and the employer. The contracts contain identical no-strike clauses,1 as well as grievance and arbitration provisions for settling disputes over the interpretation and application of each contract. The latter provide:
3
"26. Should differences arise between the (employer) and any employee covered by this Agreement as to the meaning and application of the provisions of this Agreement, or should any trouble of any kind arise in the plant, there shall be no suspension of work on account of such differences, but an earnest effort shall be made to settle such differences immediately (under the six-step grievance and arbitration procedure provided in sections 27 through 32)."2
4
Shortly before this dispute arose, the United Steelworkers and two other locals not parties to this litigation were certified to represent the employer's "office clerical-technical" (O&T) employees at the same three locations. On November 16, 1974, after several months of negotiations looking toward their first collective-bargaining agreement, the O&T employees struck and established picket lines at all three locations. On November 18, P&M employees at one plant refused to cross the O&T picket line for the day. Two days later, the employer learned that the P&M employees planned to stop work at all three plants the next morning. In telegrams to the Union, the employer stated its position that a strike by the P&M employees would violate the no-strike clause and offered to arbitrate any dispute which had led to the planned strike.3 The next day, at the Union's direction, the P&M employees honored the O&T picket line and stopped work at the three plants. They did not return to work until December 16, the first regular working day after the District Court denied the employer's prayer for a preliminary injunction.
5
The employer's complaint under § 301(a) of the Labor Management Relations Act, 1947,4 filed in District Court on November 26, claimed the work stoppage was in violation of the no-strike clause. Contending in the alternative that the work strike was caused by a specific incident involving P&M truck drivers' refusal to follow a supervisor's instructions to cross the O&T picket line, and that the question whether the P&M employees' work stoppage violated the no-strike clause was itself arbitrable, the employer requested damages, a temporary restraining order and a preliminary injunction against the strike, and an order compelling the parties to submit any "underlying dispute" to the contractual grievance and arbitration procedures. The Union's position was that the work stoppage did not violate the no-strike clause.5 It offered to submit that question to arbitration "on one day's notice,"6 but opposed the prayer for injunctive relief.
6
After denying the temporary restraining order and finding that the P&M work stoppage was not the result of the specific refusal to cross the O&T picket line, the District Court concluded that the P&M employees were engaged in a sympathy action in support of the striking O&T employees. The District Court then held itself forbidden to issue an injunction by § 4 of the Norris-LaGuardia Act7 because the P&M employees' strike was not over an "arbitrable grievance" and hence was not within the "narrow" exception to the Norris-LaGuardia Act established in Boys Markets v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). 386 F.Supp. 405 (WDNY 1974).
7
On the employer's appeal from the denial of a preliminary injunction, 28 U.S.C. § 1292(a)(1), the parties stipulated that the District Court's findings of fact were correct, that the Union had authorized and directed the P&M employees' work stoppage, that the O&T employees' strike and picket line were bona fide, primary, and legal, and that the P&M employees' work stoppage, though ended, might "be resumed at any time in the near future at the direction of the International Union, or otherwise."8
8
The Court of Appeals affirmed. It held that enjoining this strike, which was not "over a grievance which e union has agreed to arbitrate," was not permitted by the Boys Markets exception to the Norris-LaGuardia Act. 517 F.2d 1207, 1210 (CA2 1975). Because the Courts of Appeals are divided on the question whether such a strike may be enjoined,9 we granted the employer's petition for a writ of certiorari, 423 U.S. 911, 96 S.Ct. 214, 46 L.Ed.2d 139 (1975), and now affirm the judgment of the Court of Appeals.
II
9
As a preliminary matter, certain elements in this case are not in dispute. The Union has gone on strike not by reason of any dispute it or any of its members has with the employer, but in support of other local unions of the same international organization, that were negotiating a contract with the employer and were out on strike. The parties involved here are bound by collective-bargaining contracts each containing a no-strike clause which the Union claims does not forbid sympathy strikes. The employer has the other view, its complaint in the District Court asserting that the work stoppage violated the no-strike clause. Each of the contracts between the parties also has an arbitration clause broad enough to reach not only disputes between the Union and the employer about other provisions in the contracts but also as to the meaning and application of the no-strike clause itself. Whether the sympathy strike the Union called violated the no-strike clause, and the appropriate remedies if it did, are subject to the agreed-upon dispute-settlement procedures of the contracts and are ultimately issues for the arbitrator. Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Steelworkers v. Enterprise Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The employer thus was entitled to invoke the arbitral process to determine the legality of the sympathy strike and to obtain a court order requiring the Union to arbitrate if the Union refused to do so. Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). Furthermore, were the issue arbitrated and the strike found illegal, the relevant federal statutes as construed in our cases would permit an injunction to enforce the arbitral decision. Steelworkers v. Enterprise Corp., supra.
10
The issue in this case arises because the employer not only asked for an order directing the Union to arbitrate but prayed that the strike itself be enjoined pending arbitration and the arbitrator's decision whether the strike was permissible under the no-strike clause. Contrary to the Court of Appeals, the employer claims that despite the Norris-LaGuardia Act's ban on federal-court injunctions in labor disputes the District Court was empowered to enjoin the strike by § 301 of the Labor Management Relations Act as construed by Boys Markets v. Retail Clerks Union, supra. This would undoubtedly have been the case had the strike been precipitated by a dispute between union and management that was subject to binding arbitration under the provisions of the contracts. In Boys Markets, the union demanded that supervisory employees cease performing tasks claimed by the union to be union work. The union struck when the demand was rejected. The dispute was of the kind subject to the grievance and arbitration clauses contained in the collective-bargaining contract, and it was also clear that the strike violated the no-strike clause accompanying the arbitration provisions. The Court held that the union could be enjoined from striking over a dispute which it was bound to arbitrate at the employer's behest.
11
The holding in Boys Markets was said to be a "narrow one," dealing only with the situation in which the collective-bargaining contract contained mandatory grievance and arbitration procedures. Id., at 253, 90 S.Ct., at 1594. "(F)or the guidance of the district courts in determining whether to grant injunctive relief," the Court expressly adopted the principles enunciated in the dissent in Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 228, 82 S.Ct. 1328, 1346, 8 L.Ed.2d 440 (1962), including the proposition that
12
" '(w)hen a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike.' " 398 U.S., at 254, 90 S.Ct., at 1594 (emphasis in Sinclair ).
13
The driving force behind Boys Markets was to implement the strong congressional preference for the private dispute settlement mechanisms agreed upon by the parties. Only to that extent was it held necessary to accommodate § 4 of the Norris-LaGuardia Act to § 301 of the Labor Management Relations Act and to lift the former's ban against the issuance of injunctions in labor disputes. Striking over an arbitrable dispute would interfere with and frustrate the arbitral processes by which the parties had chosen to settle a dispute. The Quid pro quo for the employer's promise to arbitrate was the union's obligation not to strike over issues that were subject to the arbitration machinery. Even in the absence of an express no-strike clause, an undertaking not to strike would be implied where the strike was over an otherwise arbitrable dispute. Gateway Coal Co. v. Mine Workers, supra; Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). Otherwise, the employer would be deprived of his bargain and the policy of the labor statutes to implement private resolution of disputes in a manner agreed upon would seriously suffer.
14
Boys Markets plainly does not control this case. The District Court found, and it is not now disputed, that the strike was not over any dispute between the Union and the employer that was even remotely subject to the arbitration provisions of the contract. The strike at issue was a sympathy strike in support of sister unions negotiating with the employer; neither its causes nor the issue underlying it was subject to the settlement procedures provided by the contracts between the employer and respondents. The strike had neither the purpose nor the effect of denying or evading an obligation to arbitrate or of depriving the employer of its bargain. Thus, had the contract not contained a no-strike clause or had the clause expressly excluded sympathy strikes, there would have been no possible basis for implying from the existence of an arbitration clause a promise not to strike that could have been violated by the sympathy strike in this case. Gateway Coal Co. v. Mine Workers, supra, 414 U.S. at 382, 94 S.Ct., at 639.10
15
Nor was the injunction authorized solely because it was alleged that the sympathy strike called by the Union violated the express no-strike provision of the contracts. Section 301 of the Act assigns a major role to the courts in enforcing collective-bargaining agreements, but aside from the enforcement of the arbitration provisions of such contracts, within the limits permitted by Boys Markets, the Court has never indicated that the courts may enjoin actual or threatened contract violations despite the Norris-LaGuardia Act. In the course of enacting the Taft-Hartley Act, Congress rejected the proposal that the Norris-LaGuardia Act's prohibition against labor-dispute injunctions be lifted to the extent necessary to make injunctive remedies available in federal courts for the purpose of enforcing collective-bargaining agreements. See Sinclair Refining Co. v. Atkinson, supra, 370 U.S. at 205-208, 82 S.Ct., at 1334-1335, and 216-224, 82 S.Ct. 1340-1343 (dissenting opinion). The allegation of the complaint that the Union was breaching its obligation not to strike did not in itself warrant an injunction. As was stated in the Sinclair dissent embraced in Boys Markets:
16
"(T)here is no general federal anti-strike policy; and although a suit may be brought under § 301 against strikes which, while they are breaches of private contracts, do not threaten any additional public policy, in such cases the anti-injunction policy of Norris-LaGuardia should prevail." 370 U.S., at 225, 82 S.Ct., at 1344.
17
The contracts here at issue, however, also contained grievance and arbitration provisions for settling disputes over the interpretation and application of the provisions of the contracts, including the no-strike clause. That clause, like others, was subject to enforcement in accordance with the procedures set out in the contracts. Here the Union struck, and the parties were in dispute whether the sympathy strike violated the Union's no-strike undertaking. Concededly, that issue was arbitrable. It was for the arbitrator to determine whether there was a breach, as well as the remedy for any breach, and the employer was entitled to an order requiring the Union to arbitrate if it refused to do so. But the Union does not deny its duty to arbitrate; in fact, it denies that the employer ever demanded arbitration. However that may be, it does not follow that the District Court was empowered not only to order arbitration but to enjoin the strike pending the decision of the arbitrator, despite the express prohibition of § 4(a) of the Norris-LaGuardia Act against injunctions prohibiting any person from "(c)easing or refusing to perform any work or to remain in any relation of employment." If an injunction could issue against the strike in this case, so in proper circumstances could a court enjoin any other alleged breach of contract pending the exhaustion of the applicable grievance and arbitration provisions even though the injunction would otherwise violate one of the express prohibitions of § 4. The court in such cases would be permitted, if the dispute was arbitrable, to hold hearings, make findings of fact,11 interpret the applicable provisions of the contract and issue injunctions so as to restore the status quo, or to otherwise regulate the relationship of the parties pending exhaustion of the arbitration process. This would cut deeply into the policy of the Norris-LaGuardia Act and make the courts potential participants in a wide range of arbitrable disputes under the many existing and future collectivebargaining contracts,12 not just for the purpose of enforcing promises to arbitrate, which was the limit of Boys Markets, but for the purpose of preliminarily dealing with the merits of the factual and legal issues that are subjects for the arbitrator and of issuing injunctions that would otherwise be forbidden by the Norris-LaGuardia Act.
18
This is not what the parties have bargained for. Surely it cannot be concluded here, as it was in Boys Markets, that such injunctions pending arbitration are essential to carry out promises to arbitrate and to implement the private arrangements for the administration of the contract. As is typical, the agreements in this case outline the prearbitration settlement procedures and provide that if the grievance "has not been . . . satisfactorily adjusted," arbitration may be had. Nowhere do they provide for coercive action of any kind, let alone judicial injunctions, short of the terminal decision of the arbitrator. The parties have agreed to submit to grievance procedures and arbitrate, not to litigate. They have not contracted for a judicial preview of the facts and the law.13 Had they anticipated additional regulation of their relationships pending arbitration, it seems very doubtful that they would have resorted to litigation rather than to private arrangements. The unmistakable policy of Congress stated in § 203(d), 29 U.S.C. § 173(d), is: "Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement." Gateway Coal Co. v. Mine Workers, 414 U.S., at 377, 94 S.Ct., at 636. But the parties' agreement to adjust or to bitrate their differences themselves would be eviscerated if the courts for all practical purposes were to try and decide contractual disputes at the preliminary injunction stage.
19
The dissent suggests that injunctions should be authorized in cases such as this at least where the violation, in the court's view, is clear and the court is sufficiently sure that the parties seeking the injunction will win before the arbitrator. But this would still involve hearings, findings, and judicial interpretations of collective-bargaining contracts. It is incredible to believe that the courts would always view the facts and the contract as the arbitrator would; and it is difficult to believe that the arbitrator would not be heavily influenced or wholly preempted by judicial views of the facts and the meaning of contracts if this procedure is to be permitted. Injunctions against strikes, even temporary injunctions, very often permanently settle the issue; and in other contexts time and expense would be discouraging factors to the losing party in court in considering whether to relitigate the issue before the arbitrator.
20
With these considerations in mind, we are far from concluding that the arbitration process will be frustrated unless the courts have the power to issue interlocutory injunctions pending arbitration in cases such as this or in others in which an arbitrable dispute awaits decision. We agree with the Court of Appeals that there is no necessity here, such as was found to be the case in Boys Markets, to accommodate the policies of the Norris-LaGuardia Act to the requirements of § 301 by empowering the District Court to issue the injunction sought by the employer.
21
The judgment of the Court of Appeals is affirmed.
22
So ordered.
23
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice POWELL join, dissenting.
24
A contractual undertaking not to strike is the union's normal Quid pro quo for the employer's undertaking to submit grievances to binding arbitration. The question in this case is whether that Quid pro quo is severable into two parts one which a federal court may enforce by injunction and another which it may not.
25
Less than three years ago all eight of my Brethren joined in an opinion which answered that question quite directly by stating that whether a district court has authority to enjoin a work stoppage "depends on whether the union was under a contractual duty not to strike." Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 380, 94 S.Ct. 629, 638, 38 L.Ed.2d 583.1
26
The Court today holds that only a part of the union's Quid pro quo is enforceable by injunction.2 The principal base for the holding are (1) the Court's literal interpretation of the Norris-LaGuardia Act; and (2) its fear that the federal judiciary would otherwise make a "massive" entry into the business of contract interpretation heretofore reserved for arbitrators. The first argument has been rejected repeatedly in cases in which the central concerns of the Norris-LaGuardia Act were not implicated. The second is wholly unrealistic3 and was implicitly rejected in Gateway Coal when the Court held that "a substantial question of contractual interpretation" was a sufficient basis for federal equity jurisdiction. 414 U.S., at 384, 94 S.Ct., at 640. That case held that an employer might enforce a somewhat ambiguous Quid pro quo; today the Court holds that a portion of the Quid pro quo is unenforceable no matter how unambiguous it may be. With all respect, I am persuaded that a correct application of the reasoning underlying the landmark decision in Boys Markets v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199, requires a different result.
27
In order to explain my conclusion adequately, I first review the rationale of Boys Markets and then relate that rationale to the question presented by this case.
28
* Eight years before Boys Markets, the Court squarely held that the Norris-LaGuardia Act precluded a federal district court from enjoining a strike in breach of a no-strike obligation under a collective-bargaining agreement requiring arbitration of the underlying dispute. Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440.4 To authorize the injunction in Boys Markets, the Court was therefore required to overrule a decision directly in point as well as to harmonize its holding with the language of the Norris-LaGuardia Act. The Court found several reasons that compelled this result.
29
First, the Court noted that injunctions enforcing a contractual commitment to arbitrate a grievance were not among the abuses against which the Norris-LaGuardia Act was aimed.5 This, of course, is clear from the declaration of policy in the Norris-LaGuardia Act itself,6 which plainly identifies a primary concern with protecting labor's ability to organize and to bargain collectively. It was the history of injunctions against strike activity in furtherance of union organization, recognition, and collective bargaining, rather than judicial enforcement of collective-bargaining agreements, that led to the enactment of the Norris-LaGuardia Act in 1932.7 As the Court observed in Boys Markets, the climate of labor relations has been transformed since the passage of the Norris-LaGuardia Act, 398 U.S., at 250-251, 90 S.Ct., at 1592, and "the central purpose of the Norris-LaGuardia Act to foster the growth and viability of labor organizations is hardly retarded if anything, this goal is advanced by a remedial device that merely enforces the obligation that the union freely undertook under a specifically enforceable agreement to submit disputes to arbitration." Id., at 252-253, 90 S.Ct., at 1593 (footnote omitted). It is equally clear that the present case does not implicate the central concerns of the Norris-LaGuardia Act; for it also deals with the enforceability of a collective-bargaining agreement rather than with the process by which such agreements are negotiated and formed.
30
Second, the Court emphasized the relevance of the subsequently enacted statute enlarging the jurisdiction of federal courts to grant relief in labor disputes. Section 301(a) of the Labor Management Relations Act expressly authorized federal jurisdiction of suits for violation of collective-bargaining agreements without respect to the amount in controversy or the citizenship of the parties. That provision was viewed as supporting the collective-bargaining process, for employers would have more incentive to enter into agreements with unions if they were mutually enforceable than if they were not. With specific reference to the value of an enforceable commitment to arbitrate grievance disputes, Boys Markets emphasized the importance of the union's no-strike commitment as the quid pro quo for the employer's undertaking to submit disputes to arbitration.8 And in many collective-bargaining agreements, the employer has agreed to mandatory arbitration only in exchange for a no-strike clause that extends beyond strikes over arbitrable disputes.9 It is therefore simply wrong to argue, as the Court does, that the strike in this case could not have had the purpose or effect "of depriving the employer of his bargain." Ante, at 408. If the sympathy strike in this case violates the Union's no-strike pledge, the same public interest in an enforceable Quid pro quo is present here as in Boys Markets. The Union contends, however, that this strike did not violate its contract, or at least, that it has not yet been decided that it does. Accordingly, this portion of the rationale of Boys Markets applies only to the extent of the certainty that the sympathy strike falls within the no-strike clause.
31
Third, the Court relied upon a line of cases in which the language of the Norris-LaGuardia Act had not been given controlling effect. Several decisions had held that the federal courts could issue injunctions in labor disputes to compel employers and unions to fulfill their obligations under the Railway Labor Act,10 notwithstanding "the earlier and more general provisions of the Norris-LaGuardia Act." Virginian R. Co. v. System Federation, 300 U.S. 515, 563, 57 S.Ct. 592, 606, 81 L.Ed. 789. Accord, Railroad Trainmen v. Howard, 343 U.S. 768, 774, 72 S.Ct. 1022, 1025, 96 L.Ed. 1283; Graham v. Locomotive Firemen, 338 U.S. 232, 237-240, 70 S.Ct. 14, 17-18, 94 L.Ed. 22. These decisions culminated in Railroad Trainmen v. Chicago, R. & I. R. Co., 353 U.S. 30, 39-42, 77 S.Ct. 635, 639-641, 1 L.Ed.2d 622, which held that a federal court could enjoin a strike by a railroad union over a dispute subject to mandatory arbitration under the Railway Labor Act. The Norris-LaGuardia Act was held not to bar the injunction because of "the need to accommodate two statutes, when both were adopted as a part of a pattern of labor legislation." Id., at 42, 77 S.Ct., at 641. See Chicago & N. W. R. Co. v. Transportation Union, 402 U.S. 570, 581-584, 91 S.Ct. 1731, 1737-1739, 29 L.Ed.2d 187. In Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 9, 1 L.Ed.2d 972, the Court relied on the same rationale to hold that § 301(a) of the Labor Management Relations Act conferred jurisdiction upon the district courts to grant the union specific enforcement of an arbitration clause in a collective-bargaining agreement. Speaking for the Court, Mr. Justice Douglas noted that the legislative history of § 301(a) "is somewhat cloudy and confusing" but that the conference report had stated that once the parties had made a collective-bargaining agreement, its enforcement " 'should be left to the usual processes of the law.' " 353 U.S., at 452, 77 S.Ct., at 916, quoting H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 42 (1947). He added:
32
"Both the Senate and the House took pains to provide for 'the usual processes of the law' by provisions which were the substantial equivalent of § 301(a) in its present form. Both the Senate Report and the House Report indicate a primary concern that unions as well as employees should be bound to collective bargaining contracts. But there was also a broader concern a concern with a procedure for making such agreements enforceable in the courts by either party. At one point the Senate Report, (S.Rep.No. 105, 80th Cong., 1st Sess. (1947),) p. 15, states, 'We feel that the aggrieved party should also have a right of action in the Federal courts. Such a policy is completely in accord with the purpose of the Wagner Act which the Supreme Court declared was "to compel employers to bargain collectively with their employees to the end that an employment contract, binding on both parties, should be made . . .." ' "Congress was also interested in promoting collective bargaining that ended with agreements not to strike. The Senate Report, Supra, p. 16 states:
33
" 'If unions can break agreements with relative impunity, then such agreements do not tend to stabilize industrial relations. The execution of an agreement does not by itself promote industrial peace. The chief advantage which an employer can reasonably expect from a collective labor agreement is assurance of uninterrupted operation during the term of the agreement. Without some effective method of assuring freedom from economic warfare for the term of the agreement, there is little reason why an employer would desire to sign such a contract.
34
" 'Consequently, to encourage the making of agreements and to promote industrial peace through faithful performance by the parties, collective agreements affecting interstate commerce should be enforceable in the Federal courts. Our amendment would provide for suits by unions as legal entities and against unions as legal entities in the Federal courts in disputes affecting commerce.'
35
"Thus collective bargaining contracts were made 'equally binding and enforceable on both parties.' Id., p. 15. As stated in the House Report, (H.R.Rep.No. 245, 80th Cong., 1st Sess. (1947),), p. 6, the new provision 'makes labor organizations equally responsible with employers for contract violations and provides for suit by either against the other in the United States district courts.' To repeat, the Senate Report, Supra, p. 17, summed up the philosophy of § 301 as follows: 'Statutory recognition of the collective agreement as a valid, binding, and enforceable contract is a logical and necessary step.
36
It will promote a higher degree of responsibility upon the parties to such agreements, and will thereby promote industrial peace.'
37
"Plainly the agreement to arbitrate grievance disputes is the Quid pro quo for an agreement not to strike. Viewed in this light, the legislation does more than confer jurisdiction in the federal courts over labor organizations. It expresses a federal policy that federal courts should enforce these agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way." 353 U.S., at 453-455, 77 S.Ct., at 916-917 (footnote omitted).
38
With direct reference to the argument that jurisdiction was withdrawn by the Norris-LaGuardia Act, Mr. Justice Douglas pointed out that even though a literal reading of that statute might bring the dispute within its terms, there was no policy justification for restricting § 301(a) to damages suits and subjecting specific performance of an agreement to arbitrate grievance disputes to the inapposite provisions of that Act. 353 U.S., at 458, 77 S.Ct., at 918.
39
These decisions and the holding of Boys Markets itself, make clear that the literal wording of the Norris-LaGuardia Act is not an insuperable obstacle to specific enforcement of a no-strike commitment in accordance with "the usual processes of the law."11
40
Fourth, Boys Markets stressed one anomalous consequence of Sinclair. In many state jurisdictions a no-strike clause could be enforced by injunction. The enactment of § 301(a), which was intended to provide an additional forum for the enforcement of collective-bargaining agreements,12 made it possible to remove state litigation to the federal forum,13 and then to foreclose any injunctive relief by reliance on the Norris-LaGuardia Act. 398 U.S., at 243-247, 90 S.Ct., at 1588-1590. This incongruous result could not easily be squared with the intent of Congress in § 301(a) to confer concurrent jurisdiction upon the state courts. That argument applies with equal force to this case.
41
Finally, Boys Markets emphasized the strong federal policy favoring settlement of labor disputes by arbitration. 398 U.S., at 242-243, 90 S.Ct., at 1587-1588. Since, apart from statutory authorization, this method of settling disputes is available only when authorized by agreement between the parties, the policy favoring arbitration equally favors the making of enforceable agreements to arbitrate. For that reason, Boys Markets also emphasized the importance of ensuring enforceability of the union's Quid pro quo for the employer's agreement to submit grievance disputes to arbitration. Id., at 247-249, 251-253, 90 S.Ct., at 1590-1591, 1592-1593. A sympathy strike in violation of a no-strike clause does not directly frustrate the arbitration process, but if the clause is not enforceable against such a strike, it does frustrate the more basic policy of motivating employers to agree to binding arbitration by giving them an effective "assurance of uninterrupted operation during the term of the agreement."14 The portion of Boys Markets is therefore not entirely applicable to the present case. Accordingly, it is essential to consider the importance of arbitration to the holding in Boys Markets. To that question I now turn.
II
42
The Boys Markets decision protects the arbitration process. A court is authorized to enjoin a strike over a grievance which the parties are contractually bound to arbitrate, but that authority is conditioned upon a finding that the contract does so provide, that the strike is in violation of the agreement, and further that the issuance of an injunction is warranted by ordinary principles of equity. Id., at 254, 90 S.Ct., at 1594.15 These conditions plainly stated in Boys Markets demonstrate that the interest in protecting the arbitration process is not simply an end in itself which exists at large and apart from other fundamental aspects of our national labor policy.
43
On the one hand, an absolute precondition of any Boys Markets injunction is a contractual obligation. A court may not order arbitration unless the parties have agreed to that process; nor can the court require the parties to accept an arbitrator's decision unless they have agreed to be bound by it. Id., 398 U.S., at 253-255, 90 S.Ct., at 1594. Accord, Gateway Coal, 414 U.S., at 374, 380-384, 94 S.Ct., at 635, 638-640. If the union reserves the right to resort to self-help at the conclusion of the arbitration process, that agreement must be respected.16 The court's power is limited by the contours of the agreement between the parties.17
44
On the other hand, the arbitration procedure is not merely an exercise; it performs the important purpose of determining what the underlying agreement actually means as applied to a specific setting. If the parties have agreed to be bound by the arbitrator's decision, the reasons which justify an injunction against a strike that would impair his ability to reach a decision must equally justify an injunction requiring the parties to abide by a decision that a strike is in violation of the no-strike clause.18 The arbitration mechanism would hardly retain its respect as a method of resolving disputes if the end product of the process had less significance than the process itself.
45
The net effect of the arbitration process is to remove completely any ambiguity in the agreement as it applies to an unforeseen, or undescribed, set of facts. But if the specific situation is foreseen and described in the contract itself with such precision that there is no need for interpretation by an arbitrator, it would be reasonable to give the same legal effect to such an agreement prior to the arbitrator's decision.19 In this case, the question whether the sympathy strike violates the no-strike clause is an arbitrable issue. If the court had the benefit of an arbitrator's resolution of the issue in favor of the employer, it could enforce that decision just as it could require the parties to submit the issue to arbitration. And if the agreement were so plainly unambiguous that there could be no bona fide issue to submit to the arbitrator, there must be the same authority to enforce the parties' bargain pending the arbitrator's final decision.20
46
The Union advances three arguments against this conclusion: (1) that interpretation of the collective-bargaining agreement is the exclusive province of the arbitrator; (2) that an injunction erroneously entered pending arbitration will effectively deprive the union of the right to strike before the arbitrator can render his decision; and (3) that it is the core purpose of the Norris-LaGuardia Act to eliminate the risk of an injunction against a lawful strike.21 Although I acknowledge the force of these arguments, I think they are insufficient to take this case outside the rationale of Boys Markets.
47
The Steelworkers trilogy22 establishes that a collective-bargaining agreement submitting all questions of contract interpretation to the arbitrator deprives the courts of almost all power to interpret the agreement to prevent submission of a dispute to arbitration or to refuse enforcement of an arbitrator's award.Boys Markets itself repeated the warning that it was not for the courts to usurp the functions of the arbitrator. 398 U.S., at 242-243, 90 S.Ct., at 1587-1588. And Gateway Coal held that an injunction may issue to protect the arbitration process even if a "substantial question of contractual interpretation" must be answered to determine whether the strike is over an arbitrable grievance. 414 U.S., at 382-384, 94 S.Ct., at 639-640. In each of these cases, however, the choice was between interpretation of the agreement by the court or interpretation by the arbitrator; a decision that the dispute was not arbitrable, or not properly arbitrated, would have precluded an interpretation of the agreement according to the contractual grievance procedure. In the present case, an interim determination of the no-strike question by the court neither usurps nor precludes a decision by the arbitrator. By definition, issuance of an injunction pending the arbitrator's decision does not supplant a decision that he otherwise would have made. Indeed it is the ineffectiveness of the damages remedy for strikes pending arbitration that lends force to the employer's argument for an injunction.23 The court does not oust the arbitrator of his proper function but fulfills a role that he never served.
48
The Union's second point, however, is that the arbitrator will rarely render his decision quickly enough to prevent an erroneously issued injunction from effectively depriving the union of its right to strike. The Union relies particularly upon decisions of this Court that recognize that even a temporary injunction can quickly end a strike.24 But this argument demonstrates only that arbitration, to be effective, must be prompt, not that the federal courts must be deprived entirely of jurisdiction to grant equitable relief. Denial of an injunction when a strike violates the agreement may have effects just as devastating to an employer as the issuance of an injunction may have to the union when the strike does not violate the agreement. Furthermore, a sympathy strike does not directly further the economic interests of the members of the striking local or contribute to the resolution of any dispute between that local, or its members, and the employer.25 On the contrary, it is the source of a new dispute which, if the strike goes forward, will impose costs on the strikers, the employer, and the public without prospect of any direct benefit to any of these parties. A rule that authorizes postponement of a sympathy strike pending an arbitrator's clarification of the no-strike clause will not critically impair the vital interests of the striking local even if the right to strike is upheld, and will avoid the costs of interrupted production if the arbitrator concludes that the no-strike clause applies.
49
Finally, the Norris-LaGuardia Act cannot be interpreted to immunize the union from all risk of an erroneously issued injunction. Boys Markets Itself subjected the union to the risk of an injunction entered upon a judge's erroneous conclusion that the dispute was arbitrable and that the strike was in violation of the no-strike clause, 398 U.S., at 254, 90 S.Ct., at 1594. Gateway Coal subjected the union to a still greater risk, for the court there entered an injunction to enforce an implied no-strike clause despite the fact that the arbitrability of the dispute, and hence the legality of the strike over the dispute, presented a "substantial question of contractual interpretation." 414 U.S., at 384, 94 S.Ct., at 640; see Id., at 380 n. 10, 94 S.Ct., at 638. The strict reading that the Union would give the Norris-LaGuardia Act would not have permitted this result.26
50
These considerations, however, do not support the conclusion that a sympathy strike should be temporarily enjoined whenever a collective-bargaining agreement contains a no-strike clause and an arbitration clause. The accommodation between the Norris-LaGuardia Act and § 301(a) of the Labor Management Relations Act allows the judge to apply "the usual processes of the law" but not to take the place of the arbitrator. Because of the risk that a federal judge, less expert in labor matters than an arbitrator, may misconstrue general contract language, I would agree that no injunction or temporary restraining order should issue without first giving the union an adequate opportunity to present evidence and argument, particularly upon the proper interpretation of the collective-bargaining agreement; the judge should not issue an injunction without convincing evidence that the strike is clearly within the no-strike clause.27 Furthermore, to protect the efficacy of arbitration, any such injunction should require the parties to submit the issue immediately to the contractual grievance procedure, and if the union so requests, at the last stage and upon an expedited schedule that assures a decision by the arbitrator as soon as practicable. Such stringent conditions would insure that only strikes in violation of the agreement would be enjoined and that the union's access to the arbitration process would not be foreclosed by the combined effect of a temporary injunction and protracted grievance procedures. Finally, as in Boys Markets, the normal conditions of equitable relief would have to be met.28
51
Like the decision in Boys Markets, this opinion reflects, on the one hand, my confidence that experience during the decades since the Norris-LaGuardia Act was passed has dissipated any legitimate concern about the impartiality of federal judges in disputes between labor and management, and on the other, my continued recognition of the fact that judges have less familiarity and expertise than arbitrators and administrators who regularly work in this specialized area. The decision in Boys Markets requires an accommodation between the Norris-LaGuardia Act and the Labor Management Relations Act. I would hold only that the terms of that accommodation do not entirely deprive the federal courts of all power to grant any relief to an employer, threatened with irreparable injury from a sympathy strike clearly in violation of a collective-bargaining agreement, regardless of the equities of his claim for injunctive relief pending arbitration.
52
Since in my view the Court of Appeals erroneously held that the District Court had no jurisdiction to enjoin the Union's sympathy strike, I would reverse and remand for consideration of the question whether the employer is entitled to an injunction.
1
Section 14.b. of each agreement provides:
"There shall be no strikes, work stoppages or interruption or impeding of work. No Officers or representatives of the Union shall authorize, instigate, aid or condone any such activities. No employee shall participate in any such activity. The Union recognizes its possible liabilities for violation of this provision and will use its influence to see that work stoppages are prevented. Unsuccessful efforts by Union officers or Union representatives to prevent and terminate conduct prohibited by this paragraph, will not be construed as 'aid' or 'condonation' of such conduct and shall not result in any disciplinary actions against the Officers, committeemen or stewards involved." App. 16.
2
Id., at 17. The final step in the six-part grievance procedure is provided for in § 32:
"In the event the grievance involves a question as to the meaning and application of the provisions of this Agreement, and has not been previously satisfactorily adjusted, it may be submitted to arbitration upon written notice of the Union or the Company." Id., at 19.
3
Id., at 22-23. At oral argument before this Court, the parties, disagreed whether the employer's telegrams were sufficient to submit the dispute to the contractual grievance procedures. Tr. of Oral Arg. 44-45, 48-50. The employer's complaint prayed for an order requiring arbitration of a dispute "relating to work performance of truck drivers or any other underlying dispute." App. 10. As far as the record indicates no grievance proceedings have taken place with respect to any aspect of the dispute. The Union apparently argued in the Court of Appeals that the employer was not entitled to an injunction because it failed to invoke the contractual grievance procedures. 517 F.2d 1207, 1209 n. 4 (1975). Like the Court of Appeals, Ibid., we need not reach the issue under our disposition of the case.
4
61 Stat. 156, 29 U.S.C. § 185(a). Section 301(a) provides:
"Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, 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."
5
District Court Tr. 57; Memorandum for Respondent in District Court 9, 13.
6
Id., at 9.
7
Section 4 of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 104, provides:
"No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
"(a) Ceasing or refusing to perform any work or to remain in any relation of employment;
"(b) Becoming or remaining a member of any labor organization or of any employer organization, regardless of any such undertaking or promise as is described in section 3 of this Act;
"(c) Paying or giving to, or withholding from, any person participating or interested in such labor dispute, any strike or unemployment benefits or insurance, or other moneys or things of value;
"(d) By all lawful means aiding any person participating or interested in any labor dispute who is being proceeded against in, or is prosecuting, any action or suit in any court of the United States or of any State;
"(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;
"(f) Assembling peaceably to act or to organize to act in promotion of their interests in a labor dispute;
"(g) Advising or notifying any person of an intention to do any of the acts heretofore specified;
"(h) Agreeing with other persons to do or not to do any of the acts heretofore specified; and
"(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified, regardless of any such undertaking or promise as is described in section 3 of this Act."
8
App. 25. The presence of an existing dispute makes this a live controversy despite the P&M employees' return to the job. See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 124-125, 94 S.Ct. 1694, 1699, 40 L.Ed.2d 1 (1974); Bus Employees v. Missouri, 374 U.S. 74, 77-78, 83 S.Ct. 1657, 1659-1660, 10 L.Ed.2d 763 (1963). The collective-bargaining agreements in effect when this action arose have expired, but the parties have stipulated, App. 25, that they govern resolution of this dispute. On appeal the employer did not challenge the District Court's finding that the P&M employees' work stoppage was not, at least in part, a protest over truck driving assignments. 517 F.2d, at 1211 n. 7.
9
The decision of the Second Circuit in this case is in accord with decisions of the Fifth and Sixth Circuits, Amstar Corp. v. Meat Cutters, 468 F.2d 1372 (CA5 1972); Plain Dealer Pub. Co. v. Cleveland Typographical Union, 520 F.2d 1220 (CA6 1975), cert. denied, 428 U.S. 909, 96 S.Ct. 3221, 49 L.Ed.2d 1217; see United States Steel Corp. v. Mine Workers, 519 F.2d 1236 (CA5 1975), reh. denied, 526 F.2d 376 (1976), cert. denied, 428 U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d 1217, but at odds with decisions of the Third, Fourth, and Eighth Circuits, NAPA Pittsburgh, Inc. v. Automotive Chauffeurs, 502 F.2d 321 (CA3) (en banc), cert. denied, 419 U.S. 1049, 96 S.Ct. 625, 42 L.Ed.2d 644 (1974); Island Creek Coal Co. v. Mine Workers, 507 F.2d 650 (CA3), cert. denied, 423 U.S. 877, 96 S.Ct. 150, 46 L.Ed.2d 110 (1975); Armco Steel Corp. v. Mine Workers, 505 F.2d 1129 (CA4 1974), cert. denied, 423 U.S. 877, 96 S.Ct. 150, 46 L.Ed.2d 110 (1975); Pilot Freight Carriers, Inc. v. Teamsters, 497 F.2d 311 (CA4), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974); Wilmington Shipping Co. v. Longshoremen, 86 L.R.R.M. 2846 (CA4), cert. denied, 419 U.S. 1022, 95 S.Ct. 498, 42 L.Ed.2d 296 (1974); Monongahela Power Co. v. Electrical Workers, 484 F.2d 1209 (CA4 1973); Valmac Industries v. Food Handlers, 519 F.2d 263 (CA8 1975), cert. granted, vacated and remanded, 428 U.S. 906, 96 S.Ct. 3215, 49 L.Ed.2d 1213; Associated Gen. Contractors v. Operating Engineers, 519 F.2d 269 (CA8 1975). The Seventh Circuit has adopted an intermediate position. Hyster Co. v. Independent Towing Assn., 519 F.2d 89 (1975), cert. denied sub nom. Hyster Co. v. Employees Assn. of Kewanee, 428 U.S. 910, 966 S.Ct. 3220, 49 S.Ct. 1216; Gary Hobart Water Corp. v. NLRB, 511 F.2d 284, cert. denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252 (1975). But cf. Inland Steel Co. v. Mine Workers, 505 F.2d 293 (1974).
10
To the extent that the Court of Appeals, 517 F.2d, at 1211, and other courts, Island Creek Coal Co. v. Mine Workers, 507 F.2d, at 653-654; Armco Steel Corp. v. Mine Workers, 505 F.2d, at 1132-1133; Amstar Corp. v. Meat Cutters, 337 F.Supp. 810, 815 (E.D. La.), rev'd on other grounds, 468 F.2d 1372 (CA5 1972); Inland Steel Co. v. Mine Workers, 505 F.2d, at 299-300, have assumed that a mandatory arbitration clause implies a commitment not to engage in sympathy strikes, they are wrong.
Gateway Coal Co. v. Mine Workers itself furnishes no additional support for the employer here. In that case, after finally concluding that the dispute over which the strike occurred was arbitrable within the meaning of the arbitration clause contained in a contract which did not also contain a no-strike clause, the Court held that the contract implied an undertaking not to strike, based on Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962), and permitted an injunction against the strike based on the principles of Boys Markets. The critical determination in Gateway was that the dispute was arbitrable. This was the fulcrum for finding a duty not to strike over that dispute and for enjoining the strike the union had called. Of course, the authority to enjoin the work stoppage depended on "whether the union was under a contractual duty not to strike." 414 U.S., at 380, 94 S.Ct., at 638. But that statement was made only preparatory to finding an implied duty not to strike. The strike was then enjoined only because it was over an arbitrable dispute. The same precondition to a strike injunction also existed in Boys Markets. Absent that factor, neither case furnishes the authority to enjoin a strike solely because it is claimed to be in breach of contract and because this claim is itself arbitrable.
11
See Fed.Rule Civ.Proc. 52(a).
12
This could embroil the district courts in massive preliminary injunction litigation. In 1972, the most recent year for which comprehensive data have been published, more than 21 million workers in the United States were covered under more than 150,000 collective-bargaining agreements. Bureau of Labor Statistics, Directory of National Unions and Employee Associations 87-88 (1973).
13
Whether a district court's preview led it to grant or to refuse the requested injunction pending arbitration, its order, as in this case, would be appealable, 28 U.S.C. § 1292(a)(1).
1
The Court read Boys Markets v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 to conclude that "s 301(a) empowers a federal court to enjoin violations of a contractual duty not to strike." 414 U.S., at 381, 94 S.Ct., at 638. There was no dissent from that proposition.
2
The enforceable part of the no-strike agreement is the part relating to a strike "over an arbitrable dispute." In Gateway Coal, however, my Brethren held that the District Court had properly entered an injunction that not only terminated a strike pending an arbitrator's decision of an underlying safety dispute, but also "prospectively required both parties to abide by his resolution of the controversy." Id., at 373, 94 S.Ct., at 634. A strike in defiance of an arbitrator's award would not be "over an arbitrable dispute"; nevertheless, the Court today recognizes the propriety of an injunction against such a strike. Ante, at 405.
3
The Court's expressed concern that enforcing an unambiguous no-strike clause by enjoining a sympathy strike might "embroil the district courts in massive preliminary injunction litigation," Ante, at 411 n. 12, is supposedly supported by the fact that 21 million American workers were covered by over 150,000 collective-bargaining agreements in 1972. These figures give some idea of the potential number of grievances that may arise, each of which could lead to a strike which is plainly enjoinable under Boys Markets. These figures do not shed any light on the number of sympathy strikes which may violate an express no-strike commitment. In the past several years over a dozen such cases have arisen. See Ante, at 404 n. 9. Future litigation of this character would, of course, be minimized by clarifying amendments to existing no-strike clauses.
4
One week after the decision in Sinclair, the Court decided Teamsters v. Yellow Transit, 370 U.S. 711, 82 S.Ct. 1293, 8 L.Ed.2d 792, by Per curiam order citing only Sinclair. The dissenters in Sinclair, whose position was substantially adopted in Boys Markets, concurred in Yellow Transit because "the collective bargaining agreement involved in this case does not bind either party to arbitrate any dispute." 370 U.S., at 711-712, 82 S.Ct., at 1293-1294. In this case, as in those cases, it does not follow from the availability of an injunction when the agreement contains a mandatory arbitration clause that one may issue when it does not. See n. 20, Infra.
5
Referring to the holding in Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, the Court stated that it had "rejected the contention that the anti-injunction proscriptions of the Norris-LaGuardia Act prohibited this type of relief, noting that a refusal to arbitrate was not 'part and parcel of the abuses against which the Act was aimed,' Id., at 458, 77 S.Ct. at 918, and that the Act itself manifests a policy determination that arbitration should be encouraged. See 29 U.S.C. § 108." 398 U.S., at 242, 90 S.Ct., at 1588 (footnote omitted).
6
Section 2 of the Act provides:
In the interpretation of this Act and in determining the jurisdiction and authority of the courts of the United States, as such jurisdiction and authority are herein defined and limited, the public policy of the United States is hereby declared as follows:
"Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; therefore, the following definitions of, and limitations upon, the jurisdiction and authority of the courts of the United States are hereby enacted." 47 Stat. 70, 29 U.S.C. § 102.
7
In Boys Markets the Court quoted with approval the following statement by the neutral members of the Special Atkinson-Sinclair Committee of the American Bar Association Labor Relations Law Section:
" 'Any proposal which would subject unions to injunctive relief must take account of the Norris-LaGuardia Act and the opposition expressed in that Act to the issuing of injunctions in labor disputes. Nevertheless, the reasons behind the Norris-LaGuardia Act seem scarcely applicable to the situation . . . (in which a strike in violation of a collective-bargaining agreement is enjoined). The Act was passed primarily because of widespread dissatisfaction with the tendency of judges to enjoin concerted activities in accordance with "doctrines of tort law which made the lawfulness of a strike depend upon judicial views of social and economic policy." (Citation omitted.) Where an injunction is used against a strike in breach of contract, the union is not subjected in this fashion to judicially created limitations on its freedom of action but is simply compelled to comply with limitations to which it has previously agreed. Moreover, where the underlying dispute is arbitrable, the union is not deprived of any practicable means of pressing its claim but is only required to submit the dispute to the impartial tribunal that it has agreed to establish for this purpose.' " 398 U.S., at 253 n. 22, 90 S.Ct., at 1593, quoting Report of Special Atkinson-Sinclair Committee, American Bar Association Labor Relations Law Section Proceedings 242 (1963).
8
"As we have previously indicated, 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." 398 U.S., at 247-248, 90 S.Ct., at 1591 (footnotes omitted). Accord, William E. Arnold Co. v. Carpenters, 417 U.S. 12, 19, 94 S.Ct. 2069, 2073, 40 L.Ed.2d 620, Gateway Coal, 414 U.S., at 381-382 and n. 14, 94 S.Ct., at 638-639.
The Court relied upon another statement by the neutral members of the Special Atkinson-Sinclair Committee:
" 'Under existing laws, employers may maintain an action for damages resulting from a strike in breach of contract and may discipline the employees involved. In many cases, however, neither of these alternatives will be feasible. Discharge of the strikers is often inexpedient because of a lack of qualified replacements or because of the adverse effect on relationships within the plant. The damage remedy may also be unsatisfactory because the employer's losses are often hard to calculate and because the employer may hesitate to exacerbate relations with the union by bringing a damage action. Hence, injunctive relief will often be the only effective means by which to remedy the breach of the no-strike pledge and thus effectuate federal labor policy.' " 398 U.S., at 248-249, n. 17, 90 S.Ct., at 1591, quoting Report of Special Atkinson-Sinclair Committee, Supra, n. 7, at 242.
9
Feller, A General Theory of the Collective Bargaining Agreement, 61 Calif.L.Rev. 663, 757-760 (1973).
10
44 Stat. 577, as amended, 48 Stat. 1185, 45 U.S.C. §§ 151-188.
11
The Court relies upon the fact that when Congress enacted the Labor Management Relations Act, it considered and rejected a proposal that would have rendered the Norris-LaGuardia Act inapplicable in any proceeding involving the violation of a collective-bargaining agreement. Ante, at 409. The argument that congressional rejection of a broad repeal of the Norris-LaGuardia Act precluded accommodation of the two Acts was fully canvassed in Sinclair, where it was accepted by the Court and rejected by the dissenters, whose views were later substantially adopted by the Court in Boys Markets. Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 204-210, 82 S.Ct. 1328, 1333-1336, 8 L.Ed.2d 440; Id., at 220-225, 82 S.Ct., at 1342-1344 (Brennan, J., dissenting); Boys Markets, 398 U.S., at 249, 90 S.Ct., at 1591. The Court today nevertheless revives this argument, candidly citing the overruled decision in Sinclair, and arguing, as did the opinion in that case, that any further accommodation between the Labor Management Relations Act and the Norris-LaGuardia Act will result in wholesale enforcement of no-strike clauses by injunction. See Sinclair, supra, at 209-210, 82 S.Ct., at 1336.
12
William E. Arnold Co. v. Carpenters, 417 U.S., at 20, 94 S.Ct., at 2074; Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483.
13
Avco Corp. v. Aero Lodge 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126.
14
Lincoln Mills, 353 U.S., at 454, 77 S.Ct., at 916. As the Court reminded us in Gateway Coal, " 'the parties' objective in using the arbitration process is primarily to further their common goal of uninterrupted production under the agreement, to make the agreement serve their specialized needs.' " 414 U.S., at 379, 94 S.Ct., at 637, quoting Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409.
15
Gateway Coal later extended Boys Markets to an injunction enforcing an implied no-strike clause coextensive with the arbitration clause in a case in which the question of arbitrability was itself a "substantial question of contractual interpretation." 414 U.S., at 380-384, 94 S.Ct., at 638-640. It did not alter the fundamental preconditions of a Boys Markets injunction: a contractual commitment to final and binding arbitration, a corresponding no-strike commitment, and satisfaction of the ordinary principles of equity. Id., at 380-384, 387-388, 94 S.Ct., at 638-640, 641.
16
Associated Gen. Contractors of Illinois v. Illinois Conference of Teamsters, 454 F.2d 1324 (CA7 1972).
17
In particular, an implied no-strike clause does not extend to sympathy strikes. See Ante, at 407-408, and n. 10.
18
The Court recognizes that an injunction may issue to enforce an arbitrator's decision that a strike is in violation of the no-strike clause. Ante, at 405. See Longshoremen v. Marine Trade Assn., 389 U.S. 64, 77-79 (Douglas, J., concurring in part and dissenting in part); New Orleans S.S. Assn. v. General Longshore Workers, 389 F.2d 369 (CA5 1968), cert. denied, 393 U.S. 828, 89 S.Ct. 92, 21 L.Ed.2d 99, Dunau, Three Problems in Labor Arbitration, 55 Va.L.Rev. 427, 473-477 (1969).
19
The Court asserts that interim relief should not be granted unless the collective-bargaining agreement expressly provides for it. Ante, at 411. The same argument could have been made against the holding in Boys Markets, since Sinclair left the parties free to endow the arbitrator with power to order an end to strikes over arbitrable grievances. Indeed, the union members of the Special Atkinson-Sinclair Committee suggested such contractual provisions as an alternative to abandonment of Sinclair. Report of Special Atkinson-Sinclair Committee, Supra, n. 7, at 239.
20
Cf. Stokely-Van Camp, Inc. v. Thacker, 394 F.Supp. 715, 719-720 (WD Wash. 1975); Note, The Applicability of Boys Markets Injunctions to Refusals to Cross a Picket Line, 76 Col.L.Rev. 113, 136-140 (1976). It is not necessary to hold that an injunction may issue if the scope of the no-strike clause is not a clearly arbitrable issue. If the agreement contains no arbitration clause whatsoever, enforcement of the no-strike clause would not promote arbitration by encouraging employers to agree to an arbitration clause in exchange for a no-strike clause. Furthermore, even if the agreement contains an arbitration clause, but the clause does not clearly extend to the question whether a strike violates the agreement, then the parties' commitment to enforcement of the no-strike clause through enforcement of the arbitrator's final decision also remains unclear.
21
The Union also argues that an injunction should be barred because the party seeking arbitration is usually required to accept the condition of which he complains pending the decision of the arbitrator. The employer normally receives the benefit of this rule, since it is the union that initiates most grievances. The Union contends that fairness dictates that it receive the same benefit pending the outcome of employer grievances. However, the rule has its origins in the need for production to go forward under the employer's control pending clarification of the agreement through arbitration. See Feller, Supra, n. 9, at 737-740. This justification hardly supports, but rather undermines, the Union's position.
The Court advances the same argument as a threat of "massive preliminary injunction litigation" by both employers and unions over all arbitrable disputes. Ante, at 411 n. 12. This argument simply ignores the special status of the no-strike clause as the Quid pro quo of the arbitration clause.
22
Steelworkers v. American Mfg. Co., 363 U.S. 564, 567-568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403; Steelworkers v. Warrior & Gulf Co., 363 U.S., at 582-583, 80 S.Ct., at 1352-1353; Steelworkers v. Enterprise Corp., 363 U.S. 593, 597-599, 80 S.Ct. 1358, 1361-1362, 4 L.Ed.2d 1424.
23
See n. 8, Supra.
24
Construction Laborers v. Curry, 371 U.S. 542, 550, 83 S.Ct. 531, 536, 9 L.Ed.2d 514; Liner v. Jafco, Inc., 375 U.S. 301, 308, 84 S.Ct. 391, 11 L.Ed.2d 347. Curry held that a judgment of a State Supreme Court requiring issuance of a temporary injunction against labor picketing was final and hence reviewable in this Court. Liner held that a state-court injunction against labor picketing was reviewable in this Court despite a claim of mootness arising from completion of construction at the picketed site. In both cases, the claim on the merits was that state-court jurisdiction was pre-empted by federal law. The finality and mootness holdings in each case rested partly on the need to protect federal labor policy from frustration by temporary injunctions erroneously issued by state courts. It was at this point that the final effect of a temporary labor injunction became relevant.
25
In this case the sympathy strike is in support of a strike by other local unions of the same international. The parties, however, attach no significance to that fact.
26
The Court emphasizes the risk of conflicting determinations in this case, but ignores the risk of conflicting determinations in Boys Markets And Gateway Coal. In Boys Markets, the District Court was required to determine the arbitrability of the dispute and the legality of the strike, clear or not, and in Gateway Coal, the District Court need only have found that the arbitrability of the dispute and the legality of the strike were "a substantial question of contractual interpretation," and hence not clear at all. The likelihood of an injunction against a lawful strike was vastly larger under the standard of Gateway Coal than under a standard requiring the District Court to find a clear violation of the no-strike clause.
The Court obscures the latter point by misreading Gateway Coal to hold that an injunction was properly issued because the dispute in that case was arbitrable. Ante, at 408-409 n. 10. But Gateway Coal expressly held that the question whether the union properly invoked a provision for work stoppages because of unsafe mine conditions was "a substantive question of contractual interpretation, and the collective-bargaining agreement explicitly commits to resolution by an impartial umpire all disagreements 'as to the meaning and application of the provisions of this agreement.' " 414 U.S., at 384, 94 S.Ct., at 640 (footnote omitted). Consistently with this holding, the arbitrator remained free to decide that the underlying dispute was not arbitrable and hence that the enjoined strike was not in violation of the agreement.
27
Of course, it is possible that an arbitrator would disagree with the court even when the latter finds the strike to be clearly prohibited. But in that case, the arbitrator's determination would govern, provided it withstands the ordinary standard of review for arbitrators' awards. See Steelworkers v. Enterprise Corp., 363 U.S., at 597-599, 80 S.Ct., at 1361-1362.
28
" '(T)he District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance.' " 398 U.S., at 254, 90 S.Ct., at 1594, quoting Sinclair, 370 U.S., at 228, 82 S.Ct., at 1346 (Brennan, J., dissenting).
| 67
|
428 U.S. 364
96 S.Ct. 3092
49 L.Ed.2d 1000
SOUTH DAKOTA, Petitioner,v.Donald OPPERMAN.
No. 75-76.
Argued March 29, 1976.
Decided July 6, 1976.
Syllabus
After respondent's car had been impounded for multiple parking violations the police, following standard procedures, inventoried the contents of the car. In doing so they discovered marihuana in the glove compartment, for the possession of which respondent was subsequently arrested. His motion to suppress the evidence yielded by the warrantless inventory search was denied, and respondent was thereafter convicted. The State Supreme Court reversed, concluding that the evidence had been obtained in violation of theFourth Amendment as made applicable to the States by the Fourteenth. Held: The police procedures followed in this case did not involve an "unreasonable" search in violation of the Fourth Amendment. The expectation of privacy in one's automobile is significantly less than that relating to one's home or office, Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325. When vehicles are impounded, police routinely follow caretaking procedures by securing and inventorying the cars' contents. These procedures have been widely sustained as reasonable under the Fourth Amendment. This standard practice was followed here, and there is no suggestion of any investigatory motive on the part of the police. Pp. 367-376.
S.D., 228 N.W.2d 152, reversed and remanded.
William J. Janklow, Pierre, S. D., for petitioner.
Robert C. Ulrich, Vermillion, S. D., for respondent, pro hac vice, by special leave of Court, 423 U.S. 1012.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We review the judgment of the Supreme Court of South Dakota, holding that local police violated the Fourth Amendment to the Federal Constitution, as applicable to the States under the Fourteenth Amendment, when they conducted a routine inventory search of an automobile lawfully impounded by police for violations of municipal parking ordinances.
2
(1)
3
Local ordinances prohibit parking in certain areas of downtown Vermillion, S. D., between the hours of 2 a. m. and 6 a. m. During the early morning hours of December 10, 1973, a Vermillion police officer observed respondent's unoccupied vehicle illegally parked in the restricted zone. At approximately 3 a. m., the officer issued an overtime parking ticket and placed it on the car's windshield. The citation warned:
4
"Vehicles in violation of any parking ordinance may be towed from the area."
5
At approximately 10 o'clock on the same morning, another officer issued a second ticket for an overtime parng violation. These circumstances were routinely reported to police headquarters, and after the vehicle was inspected, the car was towed to the city impound lot.
6
From outside the car at the impound lot, a police officer observed a watch on the dashboard and other items of personal property located on the back seat and back floorboard. At the officer's direction, the car door was then unlocked and, using a standard inventory form pursuant to standard police procedures, the officer inventoried the contents of the car, including the contents of the glove compartment which was unlocked. There he found marihuana contained in a plastic bag. All items, including the contraband, were removed to the police department for safekeeping.1 During the late afternoon of December 10, respondent appeared at the police department to claim his property. The marihuana was retained by police.
7
Respondent was subsequently arrested on charges of possession of marihuana. His motion to suppress the evidence yielded by the inventory search was denied; he was convicted after a jury trial and sentenced to a fine of $100 and 14 days' incarceration in the county jail. On appeal, the Supreme Court of South Dakota reversed the conviction. 228 N.W.2d 152. The court concluded that the evidence had been obtained in violation of the Fourth Amendment prohibition against unreasonable searches and seizures. We granted certiorari, 423 U.S. 923, 96 Ct. 264, 46 L.Ed.2d 248 (1975), and we reverse.
8
(2)
9
This Court has traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment. Although automobiles are "effects" and thus within the reach of the Fourth Amendment, Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973), warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not. Cardwell v. Lewis, 417 U.S. 583, 589, 94 S.Ct. 2464, 2468, 41 L.Ed.2d 325 (1974); Cady v. Dombrowski, supra, 413 U.S., at 439-440, 93 S.Ct. at 2527; Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970).
10
The reason for this well-settled distinction is twofold. First, the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible. Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Coolidge v. New Hampshire, 403 U.S. 443, 459-460, 91 S.Ct. 2022, 2034, 29 L.Ed.2d 564 (1971). But the Court has also upheld warrantless searches where no immediate danger was presented that the car would be removed from the jurisdiction. Chambers v. Maroney, supra, 399 U.S., at 51-52, 90 S.Ct. at 1981; Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office.2 In discharging their varied responsibilities for ensuring the blic safety, law enforcement officials are necessarily brought into frequent contact with automobiles. Most of this contact is distinctly noncriminal in nature. Cady v. Dombrowski, supra, 413 U.S. at 442, 93 S.Ct. at 2528. Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.
11
The expectation of privacy as to automobiles is further diminished by the obviously public nature of automobile travel. Only two Terms ago, the Court noted:
12
"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 both its occupants and its contents are in plain view." Cardwell v. Lewis, supra, 417 U.S., at 590, 94 S.Ct. at 2469.
13
In the interests of public safety and as part of what the Court has called "community caretaking functions," Cady v. Dombrowski, supra, 413 U.S. at 441, 93 S.Ct. at 2528, automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic.3 The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.
14
When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles' contents. These procedures developed in response to three distinct needs: the protection of the owner's property while it remains in police custody, United States v. Mitchell, 458 F.2d 960, 961 (CA9 1972); the protection the police against claims or disputes over lost or stolen property, United States v. Kelehar, 470 F.2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v. California, supra, 386 U.S., at 61-62, 87 S.Ct., at 790. The practice has been viewed as essential to respond to incidents of theft or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 522, 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073, 92 S.Ct. 1501, 31 L.Ed.2d 807 (1972); Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.2d 189, 194 (1971). In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned.
15
These caretaking procedures have almost uniformly been upheld by the state courts, which by virtue of the localized nature of traffic regulation have had considerable occasion to deal with the issue.4 Applying the Fourth Amendment standard of "reasonableness,"5 the state courts have overwhelmingly concluded that, even if an inventory is characterized as a "search,"6 the intrusion is constitutionally permissible. See, E. g., City of St. Paul v. Myles, 298 Minn. 298, 300-301, 218 N.W.2d 697, 699 (1974); State v. Tully, 166 Conn. 126, 136, 348 A.2d 603, 609 (1974); People v. Trusty, 183 Colo. 291, 292-297, 516 P.2d 423, 425-426 (1973); People v. Sullivan, 29 N.Y.2d 69, 73, 323 N.Y.S.2d 945, 948, 272 N.E.2d 464, 466 (1971); Cabbler v. Commonwealth, supra; Warrix v. State, supra; State v. Wallen, 185 Neb. 44, 173 N.W.2d 372, cert. denied, 399 U.S. 912, 90 S.Ct. 2211, 26 L.Ed.2d 568 (1970); State v. Criscola, 21 Utah 2d 272, 444 P.2d 517 (1968); State v. Montague, 73 Wash.2d 381, 438 P.2d 571 (1968); People v. Clark, 32 Ill.App.3d 898, 336 N.E.2d 892 (1975); State v. Achter, 512 S.W.2d 894 (Mo.Ct.App.1974); Bennett v. State, 507 P.2d 1252 (Okl.Cr.App.1973); People v. Willis, 46 Mich.App. 436, 208 N.W.2d 204 (1973); State v. All, 17 N.C.App. 284, 193 S.E.2d 770, cert. denied, 414 U.S. 866, 94 S.Ct. 51, 38 L.Ed.2d 85 (1973); Godbee v. State, 224 So.2d 441 (Fla.Dist.Ct.App.1969). Even the seminal state decision relied on by the South Dakota Supreme Court in reaching the contrary result, Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971), expressly approved police caretaking activities resulting in the securing of property within the officer's plain view.
16
The majority of the Federal Courts of Appeals have likewise sustained inventory procedures as reasonable police intrusions. As Judge Wisdom has observed:
17
"(W)hen the police take custody of any sort of container (such as) an automobile . . . it is reasonable to search the container to itemize the property to be held by the police. (This reflects) the underlying principle that the fourth amendment proscribes only Unreasonable searches." United States v. Gravitt, 484 F.2d 375, 378 (CA5 1973), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1974) (emphasis in original).
18
See also Cabbler v. Superintendent, 528 F.2d 1142 (CA4 1975), cert. pending, No. 75-1463; Barker v. Johnson, 484 F.2d 941 (CA6 1973); United States v. Mitchell, 458 F.2d 960 (CA9 1972); United States v. Lipscomb, 435 F.2d 795 (CA5 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971); United States v. Pennington, 441 F.2d 249 (CA5), cert. denied, 404 U.S. 854, 92 S.Ct. 97, 30 L.Ed.2d 94 (1971); United States v. Boyd, 436 F.2d 1203 (CA5 1971); Cotton v. United States 371 F.2d 385 (CA9 1967). Accord, Lowe v. Hopper, 400 F.Supp. 970, 976-977 (SD Ga.1975); United States v. Spitalieri, 391 F.Supp. 167, 169-170 (ND Ohio 1975); United States v. Smith, 340 F.Supp. 1023 (Conn.1972); United States v. Fuller, 277 F.Supp. 97 (DC 1967), conviction aff'd, 139 U.S.App.D.C. 375, 433 F.2d 533 (1970). These cases have recognized that standard inventories often include an examination of the glove compartment, since it is a customary place for documents of ownership and registration, United States v. Pennington, supra, at 251, as well as a place for the temporary storage of valuables.
19
(3)
20
The decisions of this Court point unmistakably to the conclusion reached by both federal and state courts that inventories pursuant to standard police procedures are reasonable. In the first such case, Mr. Justice Black made plain the nature of the inquiry before us:
21
"But the question here is not whether the search was Authorized By state law. The question is rather whether the search was Reasonable Under the Fourth Amendment." Cooper v. California, 386 U.S. at 61, 87 S.Ct., at 790 (emphasis added).
22
And, in his last writing on the Fourth Amendment, Mr. Justice Black said:
23
"(T)he Fourth Amendment does not require that every search be made pursuant to a warrant. It prohibits only 'unreasonable searches and seizures.' The relevant test is not the reasonleness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by Per se Rules; each case must be decided on its own facts." Coolidge v. New Hampshire, 403 U.S., at 509-510, 91 S.Ct. 2022, 2059, 29 L.Ed.2d 564 (concurring and dissenting) (emphasis added).
24
In applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents. In Cooper v. California, supra, the Court upheld the inventory of a car impounded under the authority of a state forfeiture statute. Even though the inventory was conducted in a distinctly criminal setting7 and carried out a week after the car had been impounded, the Court nonetheless found that the car search, including examination of the glove compartment where contraband was found, was reasonable under the circumstances. This conclusion was reached despite the fact that no warrant had issued and probable cause to search for the contraband in the vehicle had not been established. The Court said in language explicitly applicable here:
25
"It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it." 386 U.S., at 61-62,8 87 S.Ct. at 791.
26
In the following Term, the Court in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), upheld the introduction of evidence, seized by an officer who, after conducting an inventory search of a car and while taking means to safeguard it, observed a car registration card lying on the metal stripping of the car door. Rejecting the argument that a warrant was necessary, the Court held that the intrusion was justifiable since it was "taken to protect the car while it was in police custody." Id., at 236, 88 S.Ct. at 993.9
27
Finally, in Cady v. Dombrowski, supra, The Court upheld a warrantless search of an automobile towed to a private garage even though no probable cause existed to believe that the vehicle contained fruits of a crime. The sole justification for the warrantless incursion was that it was incident to the caretaking function of the local police to protect the community's safety. Indeed, the protective search was instituted solely because the local police "were under the impression" that the incapacitated driver, a Chicago police officer, was required to carry his service revolver at all times; the police had reasonable grounds to believe a weapon might be in the car, and thus available to vandals. 413 U.S., at 436, 93 S.Ct. at 2525. The Court carefully noted that the protective search was carried out in accordance with standard procedures in the local police department, ibid., a factor tending to ensure that the intrusion would be limited in scope to the extent necessary to carry out the caretaking function. See United States v. Spitalieri, 391 F.Supp., at 169. In reaching this result, the Court in Cady distinguished Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), on the grounds that the holding, invalidating a car search conducted after a vagrancy arrest, "stands only for the proposition that the search challenged there could not be justified as one incident to an arrest." 413 U.S., at 444, 93 S.Ct. at 2529. Preston therefore did not raise the issue of the constitutionality oa protective inventory of a car lawfully within police custody.
28
The holdings in Cooper, Harris, And Cady Point the way to the correct resolution of this case. None of the three cases, of course, involves the precise situation presented here; but, as in all Fourth Amendment cases, we are obliged to look to all the facts and circumstances of this case in light of the principles set forth in these prior decisions.
29
"(W)hether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case . . . ." Cooper v. California, 386 U.S., at 59, 87 S.Ct., at 790.
30
The Vermillion police were indisputably engaged in a caretaking search of a lawfully impounded automobile. Cf. United States v. Lawson, 487 F.2d 468, 471 (CA8 1973). The inventory was conducted only after the car had been impounded for multiple parking violations. The owner, having left his car illegally parked for an extended period, and thus subject to impoundment, was not present to make other arrangements for the safekeeping of his belongings. The inventory itself was prompted by the presence in plain view of a number of valuables inside the car. As in Cady, there is no suggestion whatever that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive.10
31
On this record we conclude that in following standard police procedures, prevailing throughout the country and approved by the overwhelming majority of courts, the conduct of the police was not "unreasonable" under the Fourth Amendment.
32
The judgment of the South Dakota Supreme Court is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
33
Reversed and remanded.
34
Mr. Justice POWELL, concurring.
35
While I join the opinion of the Court, I add this opinion to express additional views as to why the search conducted in this case is valid under the Fourth and Fourteenth Amendments. This inquiry involves two distinct questions: (i) whether routine inventory searches are impermissible, and (ii) if not, whether they must be conducted pursuant to a warrant.
36
* The central purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. See, E. g., United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2573, 45 L.Ed.2d 607 (1975); Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). None of our prior decisions is dispositive of the issue whether the Amendment permits routine inventory "searches"1 of automobiles.2 Resolution of this question requires a ighing of the governmental and societal interests advanced to justify such intrusions against the constitutionally protected interest of the individual citizen in the privacy of his effects. United States v. Martinez-Fuerte, 428 U.S. 543, at 555, 96 S.Ct. 3074, at 3081, 49 L.Ed.2d 1116; United States v. Brignoni-Ponce, supra, 422 U.S. at 878-879, 95 S.Ct. at 2573 (1975); United States v. Ortiz, 422 U.S. 891, 892, 95 S.Ct. 2585, 2573, 45 L.Ed.2d 623 (1975); Cady v. Dombrowski, 413 U.S. 433, 447-448, 93 S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973); Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Cf. Camara v. Municipal Court, supra, 387 U.S. at 534-535, 87 S.Ct. at 1734. As noted in the Court's opinion, see Ante at 3369, three interests generally have been advanced in support of inventory searches: (i) protection of the police from danger; (ii) protection of the police against claims and disputes over lost or stolen property; and (iii) protection of the owner's property while it remains in police custody.
37
Except in rare cases, there is little danger associated with impounding unsearched automobiles. But the occasional danger that may exist cannot be discounted entirely. See Cooper v. California, 386 U.S. 58, 61-62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). The harmful consequences in those rare cases may be great, and there does not appear to be any effective way of identifying in advance those circumstances or classes of automobile impoundments which represent a greater risk. Society also has an important interest in minimizing the number of false claims filed against police since they may diminish the community's respect for law enforcement generally and lower department morale, thereby impairing the effectiveness of the police.3 It is not clear, however, that inventories are a completely effective means of ddiscouraging false claims, since there remains the possibility of accompanying such claims with an assertion that an item was stolen prior to the inventory or was intentionally omitted from the police records.
38
The protection of the owner's property is a significant interest for both t he policeman and the citizen. It is argued that an inventory is not necessary since locked doors and rolled-up windows afford the same protection that the contents of a parked automobile normally enjoy.4 But many owners might leave valuables in their automobile temporarily that they would not leave there unattended for the several days that police custody may last. There is thus a substantial grain in security if automobiles were inventoried and valuable items removed for storage. And, while the same security could be attained by posting a guard at the storage lot, that alternative may be prohibitively expensive, especially for smaller jurisdictions.5
39
Against these interests must be weighed the citizen's interest in the privacy of the contents of his automobile. Although the expectation of privacy in an automobile is significantly less than the traditional expectation of privacy in an automobile is significantly less than the traditional expectation of privacy associated with the home, United States v. Martinez-Fuerte, 428 U.S., at 561-562, 96 S.Ct., at 3084; United States v. Ortiz, supra, 422 U.S., at 896 n. 2, 95 S.Ct., at 2588; see Cardwell v. Lewis, 417 U.S. 583, 590-591, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion), the unrestrained search of an automobile and its contents would constitute a serious intrusion upon the privacy of the individual in many circumstances. But such a search is not at issue in this case. As the Court's opinion emphasizes, the search here was limited to an inventory of the unoccupied automobile and was conducted strictly in accord with the regulations of the Vermillion Police Department.6 Upholding searches of this type provides no general license for the police to examine all the contents of such automobiles.7
40
I agree with the Court that the Constitution permits routine inventory searches, and turn next to the question whether they must be conducted pursuant to a warrant.
II
41
While the Fourth Amendment speaks broadly in terms of "unreasonable searches and seizures,"8 the decisions of this Court have recognized that the definition of "reasonableness" turns, at least in part, on the more specific dictates of the Warrant Clause. See United States v. United States District Court, 407 U.S. 297, 315, 92 S.Ct. 2125, 2135, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 356, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Camara v. Municipal Court, 387 U.S., at 528, 87 S.Ct. at 1730. As the Court explained in Katz v. United States, supra, 389 U.S. at 357, 88 S.Ct. at 514, "(s)earches conducted without warrants have been held unlawful 'notwithstanding facts unquestionably showing probable cause,' Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145, for the Constitution requires 'that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . ..' Wong Sun v. United States, 371 U.S. 471, 481-482, 83 S.Ct. 407, 414, 9 L.Ed.2d 441." Thus, although "(s)ome have argued that '(t)he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable,' United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950)," "(t)his view has not been accepted." United States v. United States District Court, supra, 407 U.S., at 315, and n. 16, 92 S.Ct., at 2136. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Except in a few carefully defined classes of cases, a search of private property without valid consent is "unreasonable" unless it has been authorized by a valid search warrant. See, E. g., Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537, 37 L.Ed.2d 596 (1973); Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856 (1964); Camara v. Municipal Court, supra, 387 U.S., at 528, 87 S.C at 1730; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951); Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 10, 70 L.Ed. 145 (1925).
42
Although the Court has validated warrantless searches of automobiles in circumstances that would not justify a search of a home or office, Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), these decisions establish no general "automobile exception" to the warrant requirement. See Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). Rather, they demonstrate that " 'for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars,' " Cady v. Dombrowski, supra, 413 U.S., at 439, 93 S.Ct. at 2527, quoting Chambers v. Maroney, supra, 399 U.S. at 52, 90 S.Ct. at 1981, a difference that may in some cases justify a warrantless search.9
43
The routine inventory search under consideration in this case does not fall within any of the established exceptions to the warrant requirement.10 But examination of the interests which are protected when searches are conditioned on warrants issued by a judicial officer reveals that none othese is implicated here. A warrant may issue only upon "probable cause." In the criminal context the requirement of a warrant protects the individual's legitimate expectation of privacy against the overzealous police officer. "Its protection consists in requiring that those inferences (concerning probable cause) be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). See, E. g., United States v. United States District Court, supra, 407 U.S. at 316-318, 92 S.Ct. at 2136. Inventory searches, however, are not conducted in order to discover evidence of crime. The officer does not make a discretionary determination to search based on a judgment that certain conditions are present. Inventory searches are conducted in accordance with established police department rules or policy and occur whenever an automobile is seized. There are thus no special facts for a neutral magistrate to evaluate.
44
A related purpose of the warrant requirement is to prevent hindsight from affecting the evaluation of the reasonableness of a search. See United States v. Martinez-Fuerte, 428 U.S., at 565, 96 S.Ct., at 3086; cf. United States v. Watson, 423 U.S. 411, 455 n. 22, 96 S.Ct. 820, 843, 46 L.Ed.2d 598 (1976) (Marshall, J., dissenting). In the case of an inventory search conducted in accordance with standard police department procedures, there is no significant danger of hindsight justification. The absence of a warrant will not impair the effectiveness of post-search review of the reasonableness of a particular inventory search.
45
Warrants also have been required outside the context of a criminal investigation. In Camara v. Municipal Court, the Court held that, absent consent, a warrant was necessary to conduct an areawide building code inspection, even though the search could be made absent cause to believe that there were violations in t particular buildings being searched. In requiring a warrant the Court emphasized that "(t)he practical effect of (the existing warrantless search procedures had been) to leave the occupant subject to the discretion of the official in the field," since
46
"when (an) inspector demands entry, the occupant ha(d) no way of knowing whether enforcement of the municipal code involved require(d) inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself (was) acting under proper authorization." 387 U.S., at 532, 87 S.Ct. at 1732.
47
In the inventory search context these concerns are absent. The owner or prior occupant of the automobile is not present, nor, in many cases, is there any real likelihood that he could be located within a reasonable period of time. More importantly, no significant discretion is placed in the hands of the individual officer: he usually has no choice as to the subject of the search or its scope.11
48
In sum, I agree with the Court that the routine inventory search in this case is constitutional.
49
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice STEWART join, dissenting.
50
The Court today holds that the Fourth Amendment permits a routine police inventory search of the closed glove compartment of a locked automobile impounded for ordinary traffic violations. Under the Court's holding, such a search may be made without attempting to secure the consent of the owner and without any particular reason to believe the impounded automobile contains contraband, evidence, or valuables, or presents any danger to its custodians or the public.1 Because I believe this holding to be contrary to sound elaboration of established Fourth Amendment principles, I dissent.
51
As Mr. Justice POWELL recognizes, the requirement of a warrant aside, resolution of the question whether an inventory search of closed compartments inside a locked automobile can ever be justified as a constitutionally "reasonable" search2 depends upon a reconciliation of the owner's constitutionally protected privacy interests against governmental intrusion, and legitimate governmental interests furthered by securing the car and its contents. Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930 (1967). The Court fails clearly to articulate the reasons for its reconciliation of these interests in this case, but it is at least clear to me that the considerations alluded to by the Court, and further discussed by Mr. Justice POWELL, are insufficient to justify the Court's result in this case.
52
To begin with, the Court appears to suggest by reference to a "diminished" expectation of privacy, Ante, at 368, that a person's constitutional interest in protecting the integrity of closed compartments of his locked automobile may routinely be sacrificed to governmental interests requiring interference with that privacy that are less compelling than would be necessary to justify a search of similar scope of the person's home or office. This has never been the law. The Court correctly observes that some prior cases have drawn distinctions between automobiles and homes or offices in Fourth Amendment cases; but even as the Court's discussion makes clear, the reasons for distinction in those cases are not present here. Thus, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), permitted certain probable-cause searches to be carried out without warrants in view of the exigencies created by the mobility of automobiles, but both decisions reaffirmed that the standard of probable cause necessary to authorize such a search was no less than the standard applicable to search of a home or office. Chambers, supra, 399 U.S., at 51, 90 S.Ct., at 1981; Carroll, supra, 267 U.S., at 155-156, 45 S.Ct., at 286.3 In other contexts the Court has recognized that automobile travel sacrifices some privacy interests to the publicity of plain view, E. g., Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion); cf. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). But this recognition, too, is inapposite here, for there is no question of plain view in this case.4 Nor does this case concern intrusions of the scope that the Court apparently assumes would ordinarily be permissible in order insure the running safety of a car. While it may be that privacy expectations associated with automobile travel are in some regards less than those associated with a home or office, see United States v. Martinez-Fuerte, 428 U.S. 543, at 561-562, 96 S.Ct. 3074, at 3084, 49 L.Ed.2d 1116, it is equally clear that "(t)he word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away . . .," Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564 (1971).5 Thus, we have recognized that "(a) Search, even of an automobile, is a substantial invasion of privacy," United States v. Ortiz, 422 U.S. 891, 896, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975) (emphasis added), and accordingly our cases have consistently recognized that the nature and substantiality of interest required to justify a Search of private areas of an automobile is no less than that necessary to justify an intrusion of similar scope into a home or office. See, E. g., United States v. Ortiz, supra; Almeida-Sanchez v. United States, 413 U.S. 266, 269-270, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973); Coolidge, supra; Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221-222, 88 S.Ct. 1472, 1475, 20 L.Ed.2d 538 (1968); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).6
53
The Court's opinion appears to suggest that its result may in any event be justified because the inventory search procedure is a "reasonable" response to
54
"three distinct needs: the protection of the owner's property while it remains in police custody . . .; the protection of the police against claims or disputes over lost or stolen property . . .; and the protection of the police from potential danger." Ante, at 369.7
55
This suggestion is flagrantly misleading, however, because the record of this case explicitly belies any relevance of the last two concerns. In any event it is my view that none of these "needs," separately or together, can suffice to justify the inventory search procedure approved by the Court.
56
First, this search cannot be justified in any way as a safety measure, for though the Court ignores it the sole purpose given by the State for the Vermillion police's inventory procedure was to secure Valuables, Record 75, 98. Nor is there any indication that the officer's search in this case was tailored in any way to safety concerns, or that ordinarily it is so circumscribed. Even aside from the actual basis for the police practice in this case, however, I do not believe that any blanket safety argument could justify a program of routine searches of the scope permitted here. As Mr. Justice POWELL recognizes, ordinarily "there is little danger associated with impounding unsearched automobiles," ante, at 378.8 Thus, while the safety rationale may not be entirely discounted when it is actually relied upon, it surely cannot justify the search of every car upothe basis of undifferentiated possibility of harm; on the contrary, such an intrusion could ordinarily be justified only in those individual cases where the officer's inspection was prompted by specific circumstances indicating the possibility of a particular danger. SeeterrY V. OHIO, 392 u.s., at 21, 27, 88 s.ct. at 1879; cf. Cady v. Dombrowski, 413 U.S. 433, 448, 93 S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973).
57
Second, the Court suggests that the search for valuables in the closed glove compartment might be justified as a measure to protect the police against lost property claims. Again, this suggestion is belied by the record, since although the Court declines to discuss it the South Dakota Supreme Court's interpretation of state law explicitly absolves the police, as "gratuitous depositors," from any obligation beyond inventorying objects in plain view and locking the car. 228 N.W.2d 152, 159 (1975),9 Moreover, as Mr. Justice POWELL notes, Ante, at 378-379, it may well be doubted that an inventory procedure would in any event work significantly to minimize the frustrations of false claims.10
58
Finally, the Court suggests that the public interest in protecting valuables that may be found inside a closed compartment of an impounded car may justify the inventory procedure. I recognize the genuineness of this governmental interest in protecting property from pilferage. But even if I assume that the posting of a guard would be fiscally impossible as an alternative means to the same protective end,11 I cannot agree with the Court's conclusion. The Court's result authorizes indeed it appears to require the routine search of nearly every12 car impounded.13 In my view, the Constitution does not permit such searches as a matter of routine; absent specific consent, such a search is permissible only in exceptional circumstances of particular necsity.
59
It is at least clear that any owner might prohibit the police from executing a protective search of his impounded car, since by hypothesis the inventory is conducted for the owner's benefit. Moreover, it is obvious that not everyone whose car is impounded would want it to be searched. Respondent himself proves this; but one need not carry contraband to prefer that the police not examine one's private possessions. Indeed, that preference is the premise of the Fourth Amendment. Nevertheless, according to the Court's result the law may presume that each owner in respondent's position consents to the search. I cannot agree. In my view, the Court's approach is squarely contrary to the law of consent;14 it ignores the duty, in the absence of consent, to analyze in each individual case whether there is a need to search a particular car for the protection of its owner which is sufficient to outweigh the particular invasion. It is clear to me under established principles that in order to override the absence of explicit consent, such a search must at least be conditioned upon the fulfillment of two requirements.15 First, there must be specific cause to believe that a search of the scope to be undertaken is necessary in order to preserve the integrity of particular valuable property threatened by the impoundment:
60
"(I)n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which . . . reasonably warrant that intrusion." Terry v. Ohio, 392 U.S., at 21, 88 S.Ct. at 1880.
61
Such a requirement of "specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence," Id., at 21 n. 18, 88 S.Ct., at 1880, for "(t)he basic purpose of this Amendment, as recognized in countless decisions of this Court, is safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara v. Municipal Court, 387 U.S., at 528, 87 S.Ct. at 1730. Cf. United States v. Brignoni-Ponce, 422 U.S. 873, 883-884, 95 S.Ct. 2574, 2588, 45 L.Ed.2d 607 (1975); Cady v. Dombrowski, 413 U.S., at 448, 93 S.Ct. at 2531; Terry v. Ohio, supra, 392 U.S., at 27, 88 S.Ct. at 1883. Second, even where a search might be appropriate, such an intrusion may only follow the exhaustion and failure of reasonable efforts under the circumstances to identify and reach the owner of the property in order to facilitate alternative means of security or to obtain his consent to the search, for in this context the right to refuse the search remains with the owner. Cf. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).16
62
Because the record in this case shows that the procedures followed by the Vermillion police in searching respondent's car fall far short of these standards, in my view the search was impermissible and its fruits must be suppressed. First, so far as the record shows, the police in this case had no reason to believe that the glove compartment of the impounded car contained particular property of any substantial value. Moreover, the owner had apparently thought it adequate to protect whatever he left in the car overnight on the street in a business area simply to lock the car, and there is nothing in the record to show that the impoundment lot would prove a less secure location against pilferage,17 cf. Mozzetti v. Superior Court, 4 Cal.3d 699, 707, 94 Cal.Rptr. 412, 484 P.2d 84, 89 (1971), particularly when it would seem likely that the owner would claim his car and its contents promptly, at least if it contained valuables worth protecting.18 Even if the police had cause to believe that the impounded car's glove compartment contained particular valuables, however, they made no effort to secure the owner's consent to the search. Although the Court relies, as it must, upon the fact that respondent was not present to make other arrangements for the re of his belongings, Ante, at 375, in my view that is not the end of the inquiry. Here the police readily ascertained the ownership of the vehicle, Record 98-99, yet they searched it immediately without taking any steps to locate respondent and procure his consent to the inventory or advise him to make alternative arrangements to safeguard his property, Id., at 32, 72, 73, 79. Such a failure is inconsistent with the rationale that the inventory procedure is carried out for the benefit of the owner.
63
The Court's result in this case elevates the conservation of property interests indeed mere possibilities of property interests above the privacy and security interests protected by the Fourth Amendment. For this reason I dissent. On the remand it should be clear in any event that this Court's holding does not preclude a corary resolution of this case or others involving the same issues under any applicable state law. See Oregon v. Hass, 420 U.S. 714, 726, 95 S.Ct. 1215, 1223, 43 L.Ed.2d 570 (1975) (Marshall, J., dissenting).
64
Statement of Mr. Justice WHITE.
65
Although I do not subscribe to all of my Brother MARSHALL's dissenting opinion, particularly some aspects of his discussion concerning the necessity for obtaining the consent of the car owner, I agree with most of his analysis and conclusions and consequently dissent from the judgment of the Court.
1
At respondent's trial, the officer who conducted the inventory testified as follows:
"Q. And why did you inventory this car?
"A. Mainly for safekeeping, because we have had a lot of trouble in the past of people getting into the impound lot and breaking into cars and stealing stuff out of them.
"Q. Do you know whether the vehicles that were broken into . . . were locked or unlocked?
"A. Both of them were locked, they would be locked." Record 74.
In describing the impound lot, the officer stated:
"A. It's the old county highway yard. It has a wooden fence partially around part of it, and kind of a dilapidated wire fence, a makeshift fence." Id., at 73.
2
In Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), the Court held that a warrant was required to effect an unconsented administrative entry into and inspection of private dwellings or commercial premises to ascertain health or safety conditions. In contrast, this procedure has never been held applicable to automobile inspections for safety purposes.
3
The New York Court of Appeals has noted that in New York City alone, 108,332 cars were towed away for traffic violations during 1969. People v. Sullivan, 29 N.Y.2d 69, 71, 323 N.Y.S.2d 945, 946, 272 N.E.2d 464, 465 (1971).
4
In contrast to state officials engaged in everyday caretaking functions:
"The contact with vehicles by federal law enforcement officers usually, if not always, involves the detection or investigation of crimes unrelated to the operation of a vehicle." Cady v. Dombrowski, supra, 413 U.S. 433, 440, 93 S.Ct. 2523, 2527 (1973).
5
In analyzing the issue of reasonableness Vel non the courts have not sought to determine whether a protective inventory was justified by "probable cause." The standard of probable cause is peculiarly related to criminal investigations, not routine, noncriminal procedures. See generally Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. 835, 850-851 (1974). The probable-cause approach is unhelpful when analysis centers upon the reasonableness of routine administrative caretaking functions, particularly when no claim is made that the protective procedures are a subterfuge for criminal investigations.
In view of the noncriminal context of inventory searches, and the inapplicability in such a setting of the requirement of probable cause , courts have held and quite correctly that search warrants are not required, linked as the warrant requirement textually is to the probable-cause concept. We have frequently observed that the warrant requirement assures that legal inferences and conclusions as to probable cause will be drawn by a neutral magistrate unrelated to the criminal investigative-enforcement process. With respect to noninvestigative police inventories of automobiles lawfully within governmental custody, however, the policies underlying the warrant requirement, to which Mr. Justice POWELL refers, are inapplicable.
6
Given the benign noncriminal context of the intrusion, see Wyman v. James, 400 U.S. 309, 317, 91 S.Ct. 381, 385, 27 L.Ed.2d 408 (1971), some courts have concluded that an inventory does not constitute a search for Fourth Amendment purposes. See E. g., People v. Sullivan, supra, 29 N.Y.2d, at 77, 323 N.Y.S.2d, at 952, 272 N.E.2d, at 469; People v. Willis, 46 Mich.App. 436, 208 N.W.2d 204 (1973); State v. Wallen, 185 Neb. 44, 49-50, 173 N.W.2d 372, 376, cert. denied, 399 U.S. 912, 90 S.Ct. 2211, 26 L.Ed.2d 568 (1970). Other courts have expressed doubts as to whether the intrusion is classifiable as a search. State v. All, 17 N.C.App. 284, 286, 193 S.E.2d 770, 772, cert. denied, 414 U.S. 866, 94 S.Ct. 51, 38 L.Ed.2d 85 (1973). Petitioner, however, has expressly abandoned the contention that the inventory in this case is exempt from the Fourth Amendment standard of reasonableness. Tr. of Oral Arg. 5.
7
In Cooper, the owner had been arrested on narcotics charges, and the car was taken into custody pursuant to the state forfeiture statute. The search was conducted several months before the forfeiture proceedings were actually instituted.
8
There was, of course, no certainty at the time of the search that forfeiture proceedings would ever be held. Accordingly, there was no reason for the police to assume automatically that the the automobile would eventually be forfeited to the State. Indeed, as the California Court of Appeal stated, "(T)he instant record nowhere discloses that forfeiture proceedings were instituted in respect to defendant's car . . . ." People v. Cooper, 234 Cal.App.2d 587, 596, 44 Cal.Rptr. 483, 489 (1965). No reason would therefore appear to limit Cooper to an impoundment pursuant to a forfeiture statute.
9
The Court expressly noted that the legality of the inventory was not presented, since the evidence was discovered at the point when the officer was taking protective measures to secure the automobile from the elements. But the Court clearly held that the officer acted properly in opening the car for protective reasons.
10
The inventory was not unreasonable in scope. Respondent's motion to suppress in state court challenged the inventory only as to items inside the car not in plain view. But once the policeman was lawfully inside the car to secure the personal property in plain view, it was not unreasonable to open the unlocked glove compartment, to which vandals would have had ready and unobstructed access once inside the car.
The "consent" theory advanced by the dissent rests on the assumption that the inventory is exclusively for the protection of the car owner. It is not. The protection of the municipality and public officers from claims of lost or stolen property and the protection of the public from vandals who might find a firearm, Cady v. Dombrowski, or as here, contraband drugs, are also crucial.
1
Routine inventories of automobiles intrude upon an area in which the private citizen has a "reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Thus, despite their benign purpose, when conducted by government officials they constitute "searches" for purposes of the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 18 n. 15, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968); United States v. Lawson, 487 F.2d 468 (CA8 1973); Mozzetti v. Superior Court, 4 Cal.3d 699, 709-710, 94 Cal.Rptr. 412, 484 P.2d 84, 90-91 (1971) (en banc). Cf. Cardwell v. Lewis, 417 U.S. 583, 591, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion).
2
The principal decisions relied on by the State to justify the inventory search in this case, Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); and Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), each relied in part on significant factors not found here. Harris only involved an application of the "plain view" doctrine. In Cooper the Court validated an automobile search that took place one week after the vehicle was impounded on the theory that the police had a possessory interest in the car based on a state forfeiture statute requiring them to retain it some four months until the forfeiture sale. See 386 U.S., at 61-62, 87 S.Ct. at 791. Finally, in Cady the Court held that the search of an automobile trunk "which the officer reasonably believed to contain a gun" was not unreasonable within the meaning of the Fourth and Fourteenth Amendments. 413 U.S., at 448, 93 S.Ct. at 2531. See also Id., at 436-437, 93 S.Ct. at 2526. The police in a typical inventory search case, however, will have no reasonable belief as to the particular automobile's contents. And, although the police in this case knew with certainty that there were items of personal property within the exposed interior of the car I. e., the watch on the dashboard see Ante, at 366, this information alone did not, in the circumstances of this case, provide additional justification for the search of the closed console glove compartment in which the contraband was discovered.
3
The interest in protecting the police from liability for lost or stolen property is not relvant in this case. Respondent's motion to suppress was limited to items inside the autombile not in plain view. And, the Supreme Court of South Dakota here held that the removal of objects in plain view, and the closing of windows and locking of doors, satisfied any duty the police department owed the automobile's owner to protect property in police possession. S.D., 228 N.W.2d 152, 159 (1975).
4
See Mozzetti v. Superior Court, supra, 4 Cal3d, at 709-710, 94 Cal.Rptr. 412, 484 P.2d, at 90-91.
5
See Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. 835, 853 (1974).
6
A complete "inventory report" is required of all vehicles impounded by the Vermillion Police Department. The standard inventory consists of a survey of the vehicle's exterior—windows, fenders, trunk, and hood—apparently for damage, and its interior, to locate "valuables" for storage. As part of each inventory a standard report form is completed. The report in this case listed the items discovered in both the automobile's interior and the unlocked glove compartment. The only notation regarding the trunk was that it was locked. A police officer testified that all impounded vehicles are searched, that the search always includes the glove compartment, and that the trunk had not been searched in this case because it was locked. See Record 33-34, 73-79.
7
As part of their inventory search the police may discover materials such as letters or checkbooks that "touch upon intimate areas of an individual's personal affairs," and "reveal much about a person's activities, associations, and beliefs." California Bankers Assn. v. Shultz, 416 U.S. 21, 78-79, 94 S.Ct. 1494, 1525, 39 L.Ed.2d 812 (1974) (Powell, J., concurring). See also Fisher v. United States, 425 U.S. 391, 401 n. 7, 96 S.Ct. 1569, 1576, 48 L.Ed.2d 39 (1976). In this case the police found, inter alia, "miscellaneous papers," a checkbook, an installment loan book, and a social security status card. Record 77. There is, however, no evidence in the record that in carrying out their established inventory duties the Vermillion police do other than search for and remove for storage such property without examining its contents.
8
The Amendment provides that
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
9
This difference turns primarily on the mobility of the automobile and the impracticability of obtaining a warrant in many circumstances, E. g., Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 294, 69 L.Ed. 543 (1925). The lesser expectation of privacy in an automobile also is important. See United States v. Ortiz, 422 U.S. 891, 896 n. 2, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975); Cardwell v. Lewis, 417 U.S., at 590, 94 S.Ct. at 2469; Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S.Ct. 2535, 2542, 37 L.Ed.2d 596 (1973) (Powell, J., concurring). See Cady v. Dombrowski, 413 U.S. at 441-442, 93 S.Ct. at 2528.
10
See, E. g., Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Warden v. Hayden, 387 U.S. 294, 298-300, 87 S.Ct. 1642, 1645, 18 L.Ed.2d 782 (1967); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Brinegar v. United States, 338 U.S. 160, 174-177, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949); Carroll v. United States, supra, 267 U.S., at 153, 156, 45 S.Ct. at 283. See also McDonald v. United States, 335 U.S. 451, 454-456, 69 S.Ct. 191, 192, 93 L.Ed. 153 (1948); United States v. Mapp, 476 F.2d 67, 76 (CA2 1973) (listing then-recognized exceptions to warrant requirement: (i) hot pursuit; (ii) plain-view doctrine; (iii) emergency situation; (iv) automobile search; (v) consent; and (vi) incident to arrest).
11
In this case, for example, the officer who conducted the search testified that the offending automobile was towed to the city impound lot after a second ticket had been issued for a parking violation. The officer further testified that all vehicles taken to the lot are searched in accordance with a "standard inventory sheet" and "all items (discovered in the vehicles) are removed for safekeeping." Record 74. See n. 6, Supra.
1
The Court does not consider, however, whether the police might open and search the glove compartment if it is locked, or whether the police might search a locked trunk or other compartment.
2
I agree with Mr. Justice POWELL's conclusion, Ante, at 377 n. 1, that, as petitioner conceded, Tr. of Oral Arg. 5, the examination of the closed glove compartment in this case is a "search." See Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930 (1967): "It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior." See also Cooper v. California, 386 U.S. 58, 61, 87 S.Ct. 788, 790, 17 L.Ed.2d 730 (1967), quoted in n. 5, Infra. Indeed, the Court recognized in Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968), that the procedure invoked here would constitute a search for Fourth Amendment purposes.
3
This is, of course, "probable cause in the sense of specific knowledge about a particular automobile." Almeida-Sanchez v. United States, 413 U.S. 266, 281, 93 S.Ct. 2535, 2544, 37 L.Ed.2d 596 (1973) (Powell, J., concurring).
4
In its opinion below, the Supreme Court of South Dakota stated that in its view the police were constitutionally justified in entering the car to remove, list, and secure objects in plain view from the outside of the car. 228 N.W.2d 152, 158-159 (1975). This issue is not presented on certiorari here.
Contrary to the Court's assertion, however, Ante, at 375-376, the search of respondent's car was not in any way "prompted by the presence in plain view of a number of valuables inside the car." In fact, the record plainly states that every vehicle taken to the city impound lot was inventoried, Record 33, 74, 75, and that as a matter of "standard procedure," "every inventory search" would involve entry into the car's closed glove compartment. Id., at 43, 44. See also Tr. of Oral Arg. 7. In any case, as Mr. Justice POWELL recognizes, Ante, at 377-378 n. 2, entry to remove plain-view articles from the car could not justify a further search into the car's closed areas. Cf. Chimel v. California, 395 U.S. 752, 763, 764-768, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). Despite the Court's confusion on this point further reflected by its discussion of Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971), Ante at 371, and its reliance on state and lower federal-court cases approving nothing more than inventorying of plain-view items, E. g., Barker v. Johnson, 484 F.2d 941 (CA6 1973); United States v. Mitchell, 458 F.2d 960 (CA9 1972); United States v. Fuller, 277 F.Supp. 97 (DC 1967), conviction aff'd, 139 U.S.App.D.C. 375, 433 F.2d 533 (1970); State v. Tully, 166 Conn. 126, 348 A.2d 603 (1974); State v. Achter, 512 S.W.2d 894 (Mo.Ct.App.1974); State v. All, 17 N.C.App. 284, 193 S.E.2d 770, cert. denied, 414 U.S. 866, 94 S.Ct. 51, 38 L.Ed.2d 85 (1973) I must conclude that the Court's holding also permits the intrusion into a car and its console even in the absence of articles in plain view.
5
Moreover, as the Court observed in Cooper v. California, supra, 386 U.S., at 61, 87 S.Ct. at 791: " '(L)awful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it.' "
6
It would be wholly unrealistic to say that there is no reasonable and actual expectation in maintaining the privacy of closed compartments of a locked automobile, when it is customary for people in this day to carry their most personal and private papers and effects in their automobiles from time to time. Cf. Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (opinion of the Court; Id., at 361, 88 S.Ct., at 516 (Harlan, J., concurring)). Indeed, this fact is implicit in the very basis of the Court's holding that such compartments may contain valuables in need of safeguarding.
Mr. Justice POWELL observes, Ante, at 380, and n. 7, that the police would not be justified in sifting through papers secured under the procedure employed here. I agree with this, and I note that the Court's opinion does not authorize the inspection of suitcases, boxes, or other containers which might themselves be sealed, removed, and secured without further intrusion. See, E. g., United States v. Lawson, 487 F.2d 468 (CA8 1973); State v. McDougal, 68 Wis.2d 399, 228 N.W.2d 671 (1975); Mozzetti v. Superior Court, supra. But this limitation does not remedy the Fourth Amendment intrusion when the simple inventorying of closed areas discloses tokens, literature, medicines, or other things which on their face may "reveal much about a person's activities, associations, and beliefs," California Bankers Assn. v. Shultz, 416 U.S. 21, 78-79, 94 S.Ct. 1494, 1526, 39 L.Ed.2d 812 (1974) (Powell, J., concurring).
7
The Court also observes that "(i)n addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned." Ante, at 369. The Court places no reliance on this concern in this case, however, nor could it. There is no suggestion that the police suspected that respondent's car was stolen, or that their search was directed at, or stopped with, a determination of the car's ownership. Indeed, although the police readily identified the car as respondent's Record 98-99, the record does not show that they ever sought to contact him.
8
The very premise of the State's chief argument, that the cars must be searched in order to protect valuables because no guard is posted around the vehicles, itself belies the argument that they must be searched at the city lot in order to protect the police there. These circumstances alone suffice to distinguish the dicta from Cooper v. California, 386 U.S., at 61-62, 87 S.Ct. at 791, recited by the Court, Ante, at 373.
The Court suggests a further "crucial" justification for the search in this case: "protection of the Public from vandals who might find a firearm, Cady v. Dombrowski, (413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)), or as here, contraband drugs" (emphasis added). Ante, at 376 n. 10. This rationale, too, is absolutely without support in this record. There is simply no indication the police were looking for dangerous items. Indeed, even though the police found shotgun shells in the interior of the car, they never opened the trunk to determine whether it might contain a shotgun. Cf. Cady, supra. Aside from this, the suggestion is simply untenable as a matter of law. If this asserted rationale justifies search of all impounded automobiles, it must logically also justify the search of All automobiles, whether impounded or not, located in a similar area, for the argument is not based upon the custodial role of the police. See also Cooper v. California, supra, 386 U.S., at 61, 87 S.Ct. at 790, quoted in n. 5, Supra. But this Court has never permitted the search of any car or home on the mere undifferentiated assumption that it might be vandalized and the vandals might find dangerous weapons or substances. Certainly Cady v. Dombrowski, permitting a limited search of a wrecked automobile where, Inter alia, the police had a reasonable belief that the car contained a specific firearm, 413 U.S., at 448, 93 S.Ct. at 2531, does not so hold.
9
Even were the State to impose a higher standard of custodial responsibility upon the police, however, it is equally clear that such a requirement must be read in light of the Fourth Amendment's pre-eminence to require protective measures other than interior examination of closed areas.
10
Indeed, if such claims can be deterred at all, they might more effectively be deterred by sealing the doors and trunk of the car so that an unbroken seal would certify that the car had not been opened during custody. See Cabbler v. Superintendent, 374 F.Supp. 690, 700 (ED Va.1974), rev'd, 528 F.2d 1142 (CA4 1975), cert. pending, No. 75-1463.
11
I do not believe, however, that the Court is entitled to make this assumption, there being no such indication in the record. Cf. Cady v. Dombrowski, supra, 413 U.S., at 447, 93 S.Ct., at 2531.
12
The Court makes clear, Ante, at 375, that the police may not proceed to search an impounded car if the owner is able to make other arrangements for the safekeeping of his belongings. Additionally, while the Court does not require consent before a search, it does not hold that the police may proceed with such a search in the face of the owner's denial of permission. In my view, if the owner of the vehicle is in police custody or otherwise in communication with the police, his consent to the inventory is prerequisite to an inventory search. See Cabbler v. Superintendent, supra, 374 F.Supp., at 700; cf. State v. McDougal, 68 Wis.2d, at 413, 228 N.W.2d, at 678; Mozzetti v. Superior Court, 4 Cal.3d, at 708, 94 Cal.Rptr. 412, 484 P.2d, at 89.
13
In so requiring, the Court appears to recognize that a search of some, but not all, cars which there is no specific cause to believe contain valuables would itself belie any asserted property-securing purpose.
The Court makes much of the fact that the search here was a routine procedure, and attempts to analogize Cady v. Dombrowski. But it is quite clear that the routine in Cady was only to search where there was a reasonable belief that the car contained a dangerous weapon, 413 U.S., at 443, 93 S.Ct. at 2529; see Dombrowski v. Cady, 319 F.Supp. 530, 532 (ED Wis.1970), not, as here, to search every car in custody without particular cause.
14
Even if it may be true that many persons would ordinarily consent to a protective inventory of their car upon its impoundment, this fact is not dispositive since even a majority lacks authority to consent to the search of All cars in order to assure the search of theirs. Cf. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).
15
I need not consider here whether a warrant would be required in such a case.
16
Additionally, although not relevant on this record, since the inventory procedure is premised upon benefit to the owner, it cannot be executed in any case in which there is reason to believe the owner would prefer to forgo it. This principle, which is fully consistent with the Court's result today, requires, for example, that when the police harbor suspicions (amounting to less than probable cause) that evidence or contraband may be found inside the automobile, they may not inventory it, for they must presume that the owner would refuse to permit the search.
17
While evidence at the suppression hearing suggested that the inventory procedures were prompted by past thefts at the impound lot, the testimony refers to only two such thefts, see Ante, at 366 n. 1, over an undisclosed period of time. There is no reason on this record to believe that the likelihood of pilferage at the lot was higher or lower than that on the street where respondent left his car with valuables in plain view inside. Moreover, the failure of the police to secure such frequently stolen items as the car's battery, suggests that the risk of loss from the impoundment was not in fact thought severe.
18
In fact respondent claimed his possessions about five hours after his car was removed from the street. Record 39, 93.
| 01
|
428 U.S. 433
96 S.Ct. 3021
49 L.Ed.2d 1046
UNITED STATES et al., Petitioners,v.Max JANIS.
No. 74-958.
Argued Dec. 8, 1975.
Decided July 6, 1976.
Rehearing Denied Oct. 4, 1976.
See 429 U.S. 874, 97 S.Ct. 196.
Syllabus
Based upon the affidavit of a police officer, a Los Angeles judge issued a search warrant, pursuant to which the police seized from respondent $4,940 in cash and certain wagering records. The officer advised the Internal Revenue Service (IRS) that respondent had been arrested for bookmaking activity. Using a calculation based upon the seized evidence, the IRS assessed respondent for wagering excise taxes and levied upon the $4,940 in partial satisfaction. In the subsequent state criminal proceeding against respondent the trial court found the police officer's affidavit defective, granted a motion to quash the warrant, and order the seized items returned to the respondent, except for the $4,940. Respondent filed a refund claim for the $4,940 and, later, this action. The Government answered and counterclaimed for the unpaid balance of the assessment. Respondent moved to suppress the evidence seized and all copies thereof, and to quash the assessment. The District Court, after a hearing, concluded that respondent was entitled to a refund, because the assessment "was based in substantial part, if not completely, on illegally procured evidence in violation of (respondent's) Fourth Amendment rights," and that under the circumstances respondent was not required to prove the extent of the claimed refund. The assessment was quashed and the counterclaim accordingly was dismissed. The Court of Appeals affirmed. Held: The judicially created exclusionary rule should not be extended to forbid the use in the civil proceeding of one sovereign (here the Federal Government) of evidence illegally seized by a criminal law enforcement agent of another sovereign (here the state government), since the likelihood of deterring law enforcement conduct through such a rule is not sufficient to outweigh the societal costs imposed by the exclusion. Pp. 443-460.
(a) The prime, if not the sole, purpose of the exclusionary rule "is to deter future unlawful police conduct." Pp. 443-447.
(b) Whether the exclusionary rule is a deterrent has not yet been demonstrated. Assuming, however, that it is a deterrent, then its use in situations where it is now applied must be deemed to suffice to accomplish its purpose, because the local law enfcement official is already "punished" by the exclusion of the evidence in both the state and the federal criminal trials. The additional marginal deterrence provided by its extension in cases like this one does not outweigh the societal costs of excluding concededly relevant evidence. Pp. 447-460.
Reversed and remanded.
Sol. Gen. Robert H. Bork, Washington, D. C., for petitioners.
Herbert D. Sturman, Los Angeles, Cal., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents an issue of the appropriateness of an extension of the judicially created exclusionary rule: Is evidence seized by a state criminal law enforcement officer in good faith, but nonetheless unconstitutionally, inadmissible in a civil proceeding by or against the United States?
2
* In November 1968 the Los Angeles police obtained a warrant directing a search for bookmaking paraphernalia at two specified apartment locations in the city and, as well, on the respective persons of Morris Aaron Levine and respondent Max Janis. The warrant was issued by a judge of the Municipal Court of the Los Angeles Judicial District. It was based upon the affidavit of Officer Leonard Weissman.1 After the search, made pursuant to the warrant, both the respondent and Levine were arrested and the police seized from respondent property consisting of $4,940 in cash and certain wagering records.2
3
Soon thereafter, Officer Weissman telephoned an agent of the United States Internal Revenue Service and informed the agent that Janis had been arrested for bookmaking activity.3 With the assistance of Weissman, who was familiar with bookmakers' codes, the revenue agent analyzed the wagering records that had been seized and determined from them the gross volume of respondent's gambling activity for the five days immediately preceding the seizure. Weissman informed the agent that he had conducted a surveillance of respondent's activities that indicated that respondent had been engaged in bookmaking during the 77-day period from September 14 through November 30, 1968, the day of the arrest.
4
Respondent had not filed any federal wagering tax return pertaining to bookmaking activities for that 77-day period. Based exclusively upon its examination of the evidence so obtained by the Los Angeles police, the Internal Revenue Service made an assessment jointly against respondent and Levine for wagering taxes, under § 4401 of the Internal Revenue Code of 1954, 26 U.S.C. § 4401, in the amount of $89,026.09, plus interest. The amount of the assessment was computed by first determining respondent's average daily gross proceeds for the five-day period covered by the seized material and analyzed by the agent, and then multiplying the resulting figure by 77, the period of the police surveillance of respondent's activities.4 The assessment having been made, the Internal Revenue Service exercised its statutory authority, under 26 U.S.C. § 6331, to levy upon the $4,940 in cash in partial satisfaction of the assessment against respondent.
5
Charges were filed in due course against respondent and Levine in Los Angeles Municipal Court for violation of the local gambling laws. They moved to quash the search warrant. A suppression hearing was held by the same judge who had issued the warrant. The defendants pressed upon the court the case of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), which had been decided just three weeks earlier and After the search warrant had been issued. They urged that the Weissman affidavit did not set forth, in sufficient detail, the underlying circumstances to enable the issuing magistrate to determine independently the reliability of the information supplied by the informants. The judge granted the motion to quash the warrant. He then ordered that all items seized pursuant to it be returned expt the cash that had been levied upon by the Internal Revenue Service. App. 78-80.
6
In June 1969 respondent filed a claim for refund of the $4,940. The claim was not honored, and 18 months later, in December 1970, respondent filed suit for that amount in the United States District Court for the Central District of California. The Government answered and counterclaimed for the substantial unpaid balance of the assessment.5 In pretrial proceedings, it was agreed that the "sole basis of the computation of the civil tax assessment . . . was . . . the items obtained pursuant to the search warrant . . . and the information furnished to (the revenue agent) by Officer Weissman with respect to the duration of (respondent's) alleged wagering activities."6 Id., at 18. Respondent then moved to suppress the evidence seized, and all copies thereof in the possession of the Service, and to quash the assessment. Id., at 23-24.
7
At the outset of the hearing on the motion, the District Court observed that it was "reluctantly holding that the affidavit supporting the search warrant is insufficient under the Spinelli and Aguilar (v. Texas, 3 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)) doctrines." Id., at 47. It then concluded that "(a)ll of the evidence utilized as the basis" of the assessment "was obtained directly or indirectly as a result of the search pursuant to the defective search warrant," and that, consequently, the assessment "was based in substantial part, if not completely, on illegally procured evidence . . . in violation of (respondent's) Fourth Amendment rights to be free from unreasonable searches and seizures." 73-1 USTC P 16,083, p. 81,392 (1973). The court concluded that Janis was entitled to a refund of the $4,940, together with interest thereon, "for the reason that substantially all, if not all, of the evidence utilized by the defendants herein in making their assessment . . . was illegally obtained, and, as such, the assessment was invalid." Ibid. Further, where, as here, "illegally obtained evidence constitutes the basis of a federal tax assessment," the respondent was "not required to prove the extent of the refund to which he claims he is entitled." Id., at 81,393. Instead, it was sufficient if he prove "that substantially all, if not all, of the evidence upon which the assessment was based was the result of illegally obtained evidence." Accordingly, the court ordered that the civil tax assessment made by the Internal Revenue Service "against all the property and assets of . . . Janis be quashed," and entered judgment for the respondent. Ibid. The Government's counterclaim was dismissed with prejudice. The United States Court of Appeals for the Ninth Circuit, by unpublished memorandum without opinion, affirmed on the basis of the District Court's findings of fact and conclusions of law. Pet. for Cert. 12A.
8
Because of the obvious importance of the question, we granted certiorari. 421 U.S. 1010, 95 S.Ct. 2414, 44 L.Ed.2d 678 (1975).
II
9
Some initial observations about the procedural posture of the case in the District Court are indicated. If there is to be no limit to the burden of proof the respondent, as "taxpayer," must carry, then, even though he were to obtain a favorable decision on the inadmissibility-of-evidence issue, the respondent on this record could not possibly defeat the Government's counterclaim. The Government notes, properly we think, that the litigation is composed of two separate elements: the refund suit instituted by the respondent, and the collection suit instituted by the United States through its counterclaim. In a refund suit the taxpayer bears the burden of proving the amount he is entitled to recover. Lewis v. Reynolds, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293 (1932). It is not enough for him to demonstrate that the assessment of the tax for which refund is sought was erroneous in some respects.
10
This Court has not spoken with respect to the burden of proof in a tax collection suit. The Government argues here that the presumption of correctness that attaches to the assessment in a refund suit must also apply in a civil collection suit instituted by the United States under the authority granted by §§ 7401 and 7403 of the Code, 26 U.S.C. §§ 7401 and 7403. Thus, it is said, the defendant in a collection suit has the same burden of proving that he paid the correct amount of his tax liability.
11
The policy behind the presumption of correctness and the burden of proof, see Bull v. United States, 295 U.S. 247, 259-260, 55 S.Ct. 695, 699-700, 79 L.Ed. 1421 (1935), would appear to be applicable in each situation. It accords, furthermore, with the burden-of-proof rule which prevails in the usual preassessment proceeding in the United States Tax Court. Lucas v. Structural Steel Co., 281 U.S. 264, 271, 50 S.Ct. 263, 265, 74 L.Ed. 848 (1930); Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 9, 78 L.Ed. 212 (1933); Rule 142(a) of the Rules of Practice and Procedure of the United States Tax Court1973). In any event, for purposes of this case, we assume that this is so and that the burden of proof may be said technically to rest with respondent Janis.
12
Respondent, however, submitted no evidence tending either to demonstrate that the assessment was incorrect or to show the correct amount of wagering tax liability, if any, on his part. In the usual situation one might well argue, as the Government does, that the District Court then could not properly grant judgment for the respondent on either aspect of the suit. But the present case may well not be the usual situation. What we have is a "naked" assessment without Any foundation whatsoever if what was seized by the Los Angeles police cannot be used in the formulation of the assessment.7 The determination of tax due then may be one "without rational foundation and excessive," and not properly subject to the usual rule with respect to the burden of proof in tax cases. Helvering v. Taylor, 293 U.S. 507, 514-515, 55 S.Ct. 287, 290-291, 79 L.Ed. 623 (1935).8 See 9 J. Mertens, Law of Federal Income Taxation § 50.65 (1971).
13
There appears, indeed, to be some debate among the Federal Courts of Appeals, in different factual contexts, as to the effect upon the burden of proof in a tax case when there is positive evidence that an assessment is incorrect. Some courts indicate that the burden of showing the amount of the deficiency then shifts to the Commissioner.9 Others hold that the burden of showing the correct amount of the tax remains with the taxpayer.10 However that may be, the debate does not extend to the situation where the assessment is shown to be naked and without Any foundation. The courts then appear to apply the rule of the Taylor case. See United States v. Rexach, 482 F.2d 10, 16-17, n. 3 (CA1), cert. denied, 414 U.S. 1039, 94 S.Ct. 540, 38 L.Ed.2d 330 (1973); Pizzarello v. United States, 408 F.2d 579 (CA2), cert. denied, 396 U.S. 986, 90 S.Ct. 481, 24 L.Ed.2d 450 (1969); Suarez v. Commissioner of Internal Revenue, 58 T.C. 792, 814-815 (1972). But cf. Compton v. United States, 334 F.2d 212, 216 (CA4 1964).
14
Certainly, proof that an assessment is utterly without foundation is proof that it is arbitrary and erroneous. For purposes of this case, we need not go so far as to accept the Government's argument that the exclusion of the evidence in issue here is insufficient to require judgment for the respondent or even to shift the burden to the Government. We are willing to assume that if the District Court was correct in ruling that the evidence seized by the Los Angeles police may not be used in formulating the assessment (on which both the levy and the counterclaim were based), then the District Court was also correct in granting judgment for Janis in both aspects of the present suit. This assumption takes us, then, to the primary issue.11
III
15
This Court early pronounced a rule that the Fifth Amendment's command that no person "shall be compelled in any criminal case to be a witness against himself" renders evidence falling within the Amendment's prohibition inadmissible. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). It was not until 1914, however, that the Court held that the Fourth Amendment alone may be the basis for excluding from a federal criminal trial evidence seized by a federal officer in violation solely of that Amendment. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. This comparatively late judicial creation of a Fourth Amendment exclusionary rule is not particularly surprising. In contrast to the Fifth Amendment's direct command against the admission of compelled testimony, the issue of admissibility of evidence obtained in violation of the Fourth Amendment is determined after, and apart from, the violation.12 In Weeks it was held, however, that the Fourth Amendment did not apply to state officers, and, therefore, that material seized unconstitutionally by a state officer could be admitted in a federal criminal proceeding. This was the "silver platter" doctrine.13
16
In Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), the Court determined that the Due Process Clause of the Fourteenth Amendment reflected the Fourth Amendment to the extent of providing those protections against intrusions that are " 'implicit in the concept of ordered liberty.' " Id., at 27, 69 S.Ct., at 1361. Nonetheless, the Court, in not applying the Weeks doctrine in a state trial to the product of a state search, held:
17
"Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State's reliance upon other methods which, if consistently enforced, would be equally effective." 338 U.S., at 31, 69 S.Ct., at 1362.
18
Not long thereafter, the Court ruled that means used by a State to procure evidence could be sufficiently offensive to the concept of ordered liberty as to make admission of the evidence so procured a violation of the Due Process Clause, Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), but that such a violation would exist only in the most extreme case, Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561 (1954).
19
Thus as matters then stood, the Fourth Amendment was applicable to the States, but a State could allow an official to engage in a violation thereof with no judicial sanction except in the most extreme case. In addition, federal authorities, if they happened upon a State so inclined, could profit from the State's action by receiving on a silver platter evidence unconstitutionally obtained. The federal authorities, profiting thereby, had no judicially created reason to discourage unconstitutional searches by a State, and the States, having no judicially mandated controls, were free to engage in such searches.14
20
Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 was decided in 1960. Invoking its "supervisory power over the administration of criminal justice in the federal courts," Id., at 216, 80 S.Ct., at 1443, the Court held that
21
"evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant's immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant's timely objection in a federal criminal trial." Id., at 223, 80 S.Ct., at 1447.
22
The rule thus announced apparently served two purposes. First, it assured that a State, which could admit the evidence in its own proceedings if it so chose, nevertheless would suffer some deterrence in that its federal counterparts would be unable to use the evidence in federal criminal proceedings. Second, the rule dcouraged federal authorities from using a state official to circumvent the restrictions of Weeks.
23
Only one year later, however, the exclusionary rule was made applicable to state criminal trials. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Court ruled:
24
"Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government." Id., at 655, 81 S.Ct., at 1691.
25
The debate within the Court on the exclusionary rule has always been a warm one.15 It has been unaided, unhappily, by any convincing empirical evidence on the effects of the rule. The Court, however, has established that the "prime purpose" of the rule, if not the sole one, "is to deter future unlawful police conduct." United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). See United States v. Peltier, 422 U.S. 531, 536-539, 95 S.Ct. 2313, 2317-2318, 45 L.Ed.2d 374 (1975). Thus,
26
"(i)n sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, 414 U.S., at 348, 94 S.Ct., at 620.
And
27
"(a)s with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." Ibid.16
28
In the complex and turbulent history of the rule, the Court never has applied it to exclude evidence from a civil proceeding, federal or state.17
IV
29
In the present case we are asked to create judicially a deterrent sanction by holding that evidence obtained by a state criminal law enforcement officer in good-faith reliance on a warrant that later proved to be defective shall be inadmissible in a federal civil tax proceeding. Clearly, the enforcement of admittedly valid laws would be hampered by so extending the exclusionary rule, and, as is nearly always the case with the rule, concededly relevant and reliable evidence would be rendered unavailable.18
30
In evaluating the need for a deterrent sanction, one must first identify those who are to be deterred. In this case it is the state officer who is the primary object of the sanction. It is his conduct that is to be controlled. Two factors suggest that a sanction in addition to those that presently exist is unnecessary. First, the local law enforcement official is already "punished" by the exclusion of the evidence in the state criminal trial.19 That, necessarily, is of substantial concern to him. Second, the evidence is also excludable in the federal criminal trial, Elkins v. United States, supra, so that the entire criminal enforcement process, which is the concern and duty of these officers, is frustrated.20
31
Jurists and scholars uniformly have recognized that the exclusionary rule imposes a substantial cost on the societal interest in law enforcement by its proscription of what concededly is relevant evidence. See, e. g., Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 91 S.Ct. 1999, 2012, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 429 (1974). And alternatives that would be less costly to societal interests have been the subject of extensive discussion and exploration.21
32
Equally important, although scholars have attempted to determine whether the exclusionary rule in fact does have any deterrent effect, each empirical study on the subject, in its own way, appears to be flawed.22 It would not be appropriate to fault those who have attempted empirical studies for their lack of convincing data The number of variables is substantial,23 and many cannot be measured or subjected to effective controls. Record-keeping before Mapp was spotty at best, a fact which thus severely hampers before-and-after studies. Since Mapp, of course, all possibility of broad-scale controlled or even semi-controlled comparison studies has been eliminated.24 'Response" studies are hampered by the presence of the respondents' interests.25 And extrapolation studies are rendered highly inconclusive by the changes in legal doctrines and police-citizen relationships that have taken place in the 15 years since Mapp was decided.26
33
We find ourselves, therefore, in no better position than the Court was in 1960 when it said:
34
"Empirical statistics are not available to show that the inhabitants of states which follow the exclusionary rule suffer less from lawless searches and seizures than do those of states which admit evidence unlawfully obtained. Since as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled. For much the same reason, it cannot positively be demonstrated that enforcement of the criminal law is either more or less effective under either rule." Elkins v. United States, 364 U.S., at 218, 80 S.Ct., at 1444.
35
If the exclusionary rule is the "strong medicine" that its proponents claim it to be, then its use in the situations in which it is now applied (resulting, for example, in this case in frustration of the Los Angeles police officers' good-faith duties as enforcers of the criminal laws) must be assumed to be a substantial and efficient deterrent. Assuming this efficacy, the additional marginal deterrence provided by forbidding a different sovereign from using the evidence in a civil proceeding surely does not outweigh the cost to society of extending the rule to that situation.27 If, on the other hand, the exclusionary rule does not result in appreciable deterrence, then, clearly, its use in the instant situation is unwarranted. Under either assumption, therefore, the extension of the rule is unjustified.28
36
In short, we conclude that exclusion from federal civil proceedings of evidence unlawfully seized by a state criminal enforcement officer has not been shown to have a sufficient likelihood of deterring the conduct of the state police so that it outweighs the societal costs imposed by the exclusion. This Court, therefore, is not justified in so extending the exclusionary rule.29
37
Respondent argues, however, that the application of the exclusionary rule to civil proceedings long has been recognized in the federal courts. He cites a number of cases.30 But respondent does not critically distinguish between those cases in which the officer committing the unconstitutional search or seizure was an agent of the sovereign that sought to use the evidence, on the one hand, and those cases, such as the present one, on the other hand, where the officer has no responsibility or duty to, or agreement with, the sovereign seeking to use the evidence.31
38
The seminal cases that apply the exclusionary rule to a civil proceeding involve "intrasovereign" violations,32 a situation we need not consider here. In some cases the courts have refused to create an exclusionary rule for either intersovereign or intrasovereign violations in proceedings other than strictly criminal prosecutions. See United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (CA2 1970) (intrasovereign/parole revocation); United States v. Schipani, 435 F.2d 26 (CA2 1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1198, 28 L.Ed.2d 334 (1971) (intersovereign/sentencing).33 And in Compton v. United States, 334 F.2d 212, 215-216 (1964), a case remarkably like this one, the Fourth Circuit held that the presumption of correctness given a tax assessment was not affected by the fact that the assessment was based upon evidence unconstitutionally seized by state criminal law enforcement officers. Only one case cited by the respondent squarely holds that there must be an exclusionary rule barring use in a civil proceeding by one sovereign of material seized in violation of the Fourth Amendment by an officer of another sovereign.34 In Suarez v. Commissioner, 58 T.C. 792 (1972) (reviewed by the court, with two judges dissenting), the Tax Court determined that the exclusionary rule should be applied in a situation similar to the one that confronts us here. The court concluded that
39
"any competing consideration based upon the need for effective enforcement of civil tax liabilities (compare Elkins v. United States . . .) must give way to the higher goal of protection of the individual and the necessity for preserving confidence in, rather than encouraging contempt for, the processes of Government." Id., at 805.
40
No appeal was taken.
41
We disagree with the broad implications of this statement of the Tax Court for two reasons. To the extent that the court did not focus on the deterrent purpose of the exclusionary rule, the law has since been clarified. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975). Moreover, the court did not distinguish between intersovereign and intrasovereign uses of unconstitutionally seized material. Working, as we must, with the absence of convincing empirical data, common sense dictates that the deterrent effect of the exclusion of relevant evidence is highly attenuated when the "punishment" imposed upon the offending criminal enforcement officer is the removal of that evidence from a civil suit by or against a different sovereign. In Elkins the Court indated that the assumed interest of criminal law enforcement officers in the criminal proceedings of another sovereign counterbalanced this attenuation sufficiently to justify an exclusionary rule. Here, however, the attenuation is further augmented by the fact that the proceeding is one to enforce only the civil law of the other sovereign.
42
This attenuation, coupled with the existing deterrence effected by the denial of use of the evidence by either sovereign in the criminal trials with which the searching officer is concerned, creates a situation in which the imposition of the exclusionary rule sought in this case is unlikely to provide significant, much less substantial, additional deterrence. It falls outside the offending officer's zone of primary interest. The extension of the exclusionary rule, in our view, would be an unjustifiably drastic action by the courts in the pursuit of what is an undesired and undesirable supervisory role over police officers.35 See Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).
43
In the past this Court has opted for exclusion in the anticipation that law enforcement officers would be deterred from violating Fourth Amendment rights. Then, as now, the Court acted in the absence of convincing empirical evidence and relied, instead, on its own assumptions of human nature and the interrelationship of the various components of the law enforcement system. In the situation before us, we do not find sufficient justification for the drastic measure of an exclusionary rule. There comes a point at which courts, consistent with their duty to administer the law, cannot continue to create barriers to law enforcement in the pursuit of a supervisory role that is properly the duty of the Executive and Legislative Branches. We find ourselves at that point in this case. We therefore hold that the judicially created exclusionary rule should not be extended to forbid the use in the civil proceeding of one sovereign of evidence seized by a criminal law enforcement agent of another sovereign.
44
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
45
It is so ordered.
46
Mr. Justice STEVENS took no part in the consideration or decision of this case.
47
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL concurs, dissenting.
48
I adhere to my view that the exclusionary rule is a necessary and inherent constitutional ingredient of the protections of the Fourth Amendment. See United States v. Calandra, 414 U.S. 338, 355-367, 94 S.Ct. 613, 623-629, 38 L.Ed.2d 561 (1974) (Brennan, J., dissenting), and United States v. Peltier, 422 U.S. 531, 550-562, 95 S.Ct. 2313, 2323-2330, 45 L.Ed.2d 374 (1975) (Brennan, J., dissenting). Repetition or elaboration of the reasons supporting that view in this case would serve no useful purpose. My view of the exclusionary rule would, of course, require an affirmance of the Court of Appeals. Today's decisions in this case and in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067, Post, continue the Court's "business of slow strangulation of the rule," 422 U.S., at 561, 95 S.Ct., at 2330. But even accepting the proposition that deterrence of police misconduct is the only purpose served by the exclusionary rule, as my Brother STEWART apparently does, his dissent persuasively demonstrates the error of today's result. I dissent.
49
Mr. Justice STEWART, dissenting.
50
The Court today holds that evidence unconstitutionally seized from the respondent by state officials may be introduced against him in a proceeding to adjudicate his liability under the wagering excise tax provisions of the Internal Revenue Code of 1954. This result, in my view, cannot be squared with Elkins v. United States, 36U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. In that case the Court discarded the "silver platter doctrine" and held that evidence illegally seized by state officers cannot lawfully be introduced against a defendant in a federal criminal trial.
51
Unless the Elkins doctrine is to be abandoned, evidence illegally seized by state officers must be excluded as well from federal proceedings to determine liability under the federal wagering excise tax provisions. These provisions, constituting an "interrelated statutory system for taxing wagers," Marchetti v. United States, 390 U.S. 39, 42, 88 S.Ct. 697, 699, 19 L.Ed.2d 889, operate in an area "permeated with criminal statutes" and impose liability on a group "inherently suspect of criminal activities." Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165, quoted in Marchetti v. United States, Supra, 390 U.S., at 47, 88 S.Ct., at 702. While the enforcement of these provisions results in the collection of revenue, "we cannot ignore either the characteristics of the activities" which give rise to wagering tax liability "or the composition of the group" from which payment is sought. Grosso v. United States, 390 U.S. 62, 68, 88 S.Ct. 709, 19 L.Ed.2d 906. The wagering provisions are intended not merely to raise revenue but also to "assist the efforts of state and federal authorities to enforce (criminal) penalties" for unlawful wagering activities. Marchetti v. United States, supra, 390 U.S., at 47, 88 S.Ct., at 702.
52
Federal officials responsible for the enforcement of the wagering tax provisions regularly cooperate with federal and local officials responsible for enforcing criminal laws restricting or forbidding wagering. See 390 U.S., at 47-48, 88 S.Ct., at 702-703. Similarly, federal and local law enforcement personnel regularly provide federal tax officials with information, obtained in criminal investigations, indicating liability under the wagering tax.* The pattern is one of mutual cooperation and coordination, with the federal wagering tax provisions buttressing state and federal criminal sanctions.
53
Give this pattern, our observation in Elkins is directly opposite:
54
"Free and open cooperation between state and federal law enforcement officers is to be commended and encouraged. Yet that kind of cooperation is hardly promoted by a rule that . . . at least tacitly (invites federal officers) to encourage state officers in the disregard of constitutionally protected freedom." 364 U.S., at 221-222, 80 S.Ct., at 1446.
55
To be sure, the Elkins case was a federal criminal proceeding and the present case is civil in nature. But our prior decisions make it clear that this difference is irrelevant for Fourth Amendment exclusionary rule purposes where, as here, the civil proceeding serves as an adjunct to the enforcement of the criminal law. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170.
56
The Court's failure to heed these precedents not only rips a hole in the fabric of the law but leads to a result that cannot even serve the valid arguments of those who would eliminate the exclusionary rule entirely. For under the Court's ruling, society must not only continue to pay the high cost of the exclusionary rule (by forgoing criminal convictions which can be obtained only on the basis of illegally seized evidence) but it must also forfeit the benefit for which it has paid so dearly.
57
If state police officials can effectively crack down on gambling law violators by the simple expedient of violating their constitutional rights and turning the illegally seized evidence over to Internal Revenue Service agents on the proverbial "silver platter," then the deterrent purpose of the exclusionary rule is wholly frustrated. "If, on the other hand, it is understood that the fruit of an unlawful search by state agents will be inadmissible in a federal trial, there can be no inducement to subterfuge and evasion with respect to federal-state cooration in criminal investigation." Elkins v. United States, supra, 364 U.S., at 222, 80 S.Ct., at 1446.
1
Officer Weissman's affidavit, App. 69-74, stated: He and Sergeant Briggs of the Los Angeles Police Department each had received information from an informant concerning respondent Janis and Levine and concerning telephone numbers the two men used for bookmaking. Police investigation disclosed that Janis had two telephones with unpublished numbers, including the number given by Weissman's informant, and that there was a third published number at the same address in the name of Nancy L. Janis. The unpublished numbers given by Weissman's informant as being used by Levine were found to be maintained by Levine at a different address, and that address was the one given by Briggs' informant as being Levine's base of operations. Both informants stated that Levine and Janis were working in concert. Each officer regarded his informant as reliable; the informant had given information in the past that led to arrests for bookmaking and, in the case of Briggs' informant, to convictions as well. Preliminary hearings and trials were pending for persons arrested with the aid of Weissman's informant. Each officer and his informant believed that it was necessary for the informant's safety, and his future usefulness to law enforcement officers, that his identity be kept secret.
Weissman further stated:
"From the nature and context of the information supplied by the informant to this affiant, and from the nature and context of the information which was supplied to Sgt. Briggs, as told to this affiant, it is believed that the informants . . . at all times mentioned in this affidavit, unless otherwise specified, were speaking with personal knowledge." Id., at 73.
The affidavit, taken in its entirety, bears some similarity to the affidavit the Court later considered in Spinelli v. United States, 393 U.S. 410, 420-422, 89 S.Ct. 584, 591-592, 21 L.Ed.2d 637 (1969). Spinelli was a 5-3 decision handed down two months After the Los Angeles warrant in the present case had been issued. Mr. Justice White joined the opinion in Spinelli, id., at 423-429, 89 S.Ct., at 592-596, but, in doing so, referred, Id., at 427, 89 S.Ct., at 594, to the "tension between Draper (V. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959))," on the one hand, and Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), on the other, and, "(p)ending full-scale reconsideration" of Draper "or of the Nathanson-Aguilar Cases," joined "the opinion of the Court and the judgment of reversal, especially since a vote to affirm would produce an equally divided Court." 393 U.S., at 429, 89 S.Ct., at 595.
2
The Internal Revenue Service's Certificate of Assessments and Payments, App. 81, shows a credit of $5,097, the amount actually seized by the police and subjected to the Service's subsequent levy. The Government acknowledges, however, that $157 of this amount was money belonging to Levine. It was applied upon the joint assessment made against both Janis and Levine. Levine has not sought a refund of the $157. Brief for United States 5 n. 1. The present case, therefore, concerns only the $4,940 taken from respondent Janis.
3
Officer Weissman testified that there was no departmental policy to call the Internal Revenue Service in a situation of this kind. He did it "as a matter of police procedure." He would not do it, he said, on what he "would consider a small-size book, but I considered this one a major-size book. So, I, therefore, did it." App. 42. He further stated that some of his fellow officers had acted similarly, but that he did not think "that they all have done it." Ibid. The District Court did not rest its conclusion on any federal involvement in, or encouragement of, the search. We therefore must assume, for purposes of this opinion, that there was no federal involvement. See n. 31, Infra.
4
The wagering excise tax at the time was 10% Of the amount of the wagers. § 4401(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 4401(a). The rate was reduced to 2%, effective December 1, 1974, by Pub.L. 93-499, § 3(a), 88 Stat. 1550.
5
The Government advises us that, in order to avoid multiple litigation, its policy is to counterclaim in a refund suit, just as it did here, where there is an outstanding unpaid assessment and the refund suit and the counterclaim involve the same facts. Brief for United States 17 n. 4.
6
The Certificate of Assessments and Payments was stipulated "to be admissible without objection." App. 20. The Government did not seek to introduce the wagering records obtained by the Los Angeles police.
The Government has not asserted that, absent the seized materials, it would have had grounds for an assessment against respondent and Levine.
7
The situation may be described as having some resemblance to that for which the Court has developed an exception to the Anti-Injunction Act, § 7421(a) of the Code, 26 U.S.C. § 7421(a). See Enochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962); Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974); Alexander, Commissioner of Internal Revenue v. "Americans United" Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974); Laing v. United States, 423 U.S. 161, 96 S.Ct. 473, 46 L.Ed.2d 416 (1976); Commissioner of Internal Revenue v. Shapiro, 424 U.S. 614, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976).
8
Taylor, although decided more than 40 years ago, has never been cited by this Court on the burden-of-proof issue. The Courts of Appeals, the Court of Claims, the Tax Court, and the Federal District Courts, however, frequently have referred to that aspect of the case.
9
E. g., Foster v. Commissioner of Internal Revenue, 391 F.2d 727, 735 (CA4 1968); Herbert v. Commissioner of Internal Revenue, 377 F.2d 65, 69 (CA9 1967). See Bar L Ranch, Inc. v. Phinney, 426 F.2d 995, 999 (CA5 1970).
10
E. g., United States v. Rexach, 482 F.2d 10, 15-17 (CA1), cert. denied, 414 U.S. 1039, 94 S.Ct. 540, 38 L.Ed.2d 330 (1973); Psaty v. United States, 442 F.2d 1154, 1158-1161 (CA3 1971); Ehlers v. Vinal, 382 F.2d 58, 65-66 (CA8 1967). See Bar L Ranch, Inc. v. Phinney, 426 F.2d, at 998.
11
Although the present case presents only the issue whether such evidence may be used in the formulation of the assessment, there appears to be no difference between that question and the issue whether the evidence is to be excluded in the refund or collection suit itself. We perceive no principled distinction to be made between the use of the evidence as the basis of an assessment and its use in the case in chief.
12
"(T)he ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late." Linkletter v. Walker, 381 U.S. 618, 637, 85 S.Ct. 1731, 1742, 14 L.Ed.2d 601 (1965). "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). See United States v. Calandra, 414 U.S. 338, 347-348, 94 S.Ct. 613, 619-620, 38 L.Ed.2d 561 (1974); 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, 413, 86 S.Ct. 459, 463, 15 L.Ed.2d 453 (1966); Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968).
13
In Elkins v. United States, 364 U.S., at 207 n. 1, 80 S.Ct., at 1439, the Court noted that the appellation stems from Mr. Justice Frankfurter's plurality opinion in Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949):
"The crux of that doctrine is that a search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter." Id., at 78-79, 69 S.Ct., at 1374.
14
The absence of this Court's imposition of controls did not mean, of course, that the States were running unchecked in their pursuit of evidence. Not only were there tort remedies and internal disciplinary sanctions available, but, as the Court noted in Elkins :
"Not more than half the states continue totally to adhere to the rule that evidence is freely admissible no matter how it was obtained. Most of the others have adopted the exclusionary rule in its entirety; the rest have adopted it in part." 364 U.S., at 219, 80 S.Ct., at 1445 (footnote omitted).
See also Id., at 224-225, 80 S.Ct., at 1448 (Appendix to opinion).
15
Except for the unanimous decision written by Mr. Justice Day in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), the evolution of the exclusionary rule has been marked by sharp divisions in the Court. Indeed, Wolf, Lustig, Rochin, Irvine, Elkins, Mapp, and Calandra produced a combined total of 27 separate signed opinions or statements.
16
Thus, the Court has held that the exclusionary rule may be invoked only by those whose rights are infringed by the search itself, and not by those who are merely aggrieved by the introduction of evidence so obtained. Alderman v. United States, 394 U.S. 165, 174-175, 89 S.Ct. 961, 966-967, 22 L.Ed.2d 176 (1969).
17
The Court has applied the exclusionary rule in a proceeding for forfeiture of an article used in violation of the criminal law. Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). There it expressly relied on the fact that "forfeiture is clearly a penalty for the criminal offense" and "(i)t would be anomalous indeed, under these circumstances, to hold that in the criminal proceeding the illegally seized evidence is excludable, while in the forfeiture proceeding, requiring the determination that the criminal law has been violated, the same evidence would be admissible." Id., at 701, 85 S.Ct., at 1251. See also Boyd v. United States, 116 U.S. 616, 634, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886), where a forfeiture proceeding was characterized as "quasi-criminal."
18
There are studies and commentary to the effect that the exclusionary rule tends to lessen the accuracy of the evidence presented in court because it encourages the police to lie in order to avoid suppression of evidence. See, E. g., Garbus, Police Perjury: An Interview, 8 Crim.L.Bull. 363 (1972); Kuh, The Mapp Case One Year After; An Appraisal of Its Impact in New York, 148 N.Y.L.J. Nos. 55 and 56 (1962); Comment, Police Perjury in Narcotics "Dropsy" Cases: A New Credibility Gap, 60 Geo.L.J. 507 (1971); Effect of Mapp v. Ohio on Police Search-and-Seizure Practices in Narcotics Cases, 4 Colum.J.L. & Soc.Probs. 87 (1968). See also People v. McMurty, 64 Misc.2d 63, 314 N.Y.S.2d 194 (N.Y.C.Crim.Ct.1970).
19
It is of interest to note that the exclusion of this evidence from the California state trial was required by a decision of the State's Supreme Court issued some years prior to Mapp. See People v. Cahan, 44 Cal.2d 434, 282 P.2d 905 (1955).
20
We are aware of the suggestion, made by some commentators and incorporated in some studies, that police often view trial and conviction as a lesser aspect of law enforcement. See, E. g., J. Skolnick, Justice Without Trial 219-235 (2d ed., 1975); Milner, Supreme Court Effectiveness and the Police Organization, 36 Law & Contemp.Probs. 467, 475, 479 (1971); Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 720-736 (1970).
21
See, E. g., Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 91 S.Ct. 1999, 2012, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting); ALI Model Code of Pre-Arraignment Procedure, § §§ 290.2 (Proposed Official Draft 1975); Davidow, Criminal Procedure Ombudsman as a Substitute for the Exclusionary Rule: A Proposal, 4 Tex.Tech.L.Rev. 317 (1973); Davis, An Approach to Legal Control of the Police, 52 Texas L.Rev. 703 (1974); Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn.L.Rev. 493 (1955); Geller, Enforcing the Fourth Amendment: The Exclusionary Rule and Its Alternatives, 1975 Wash.U.L.Q. 621; Kaplan, The Limits of the Exclusionary Rule, 26 Stat.L.Rev. 1027 (1974); LaFave, Improving Police Performance Through the Exclusionary Rule Part II: Defining the Norms and Training the Police, 30 Mo.L.Rev. 566 (1965); McGowan, Rule-Making and the Police, 70 Mich.L.Rev. 659 (1972); Quinn, The Effect of Police Rulemaking on the Scope of Fourth Amendment Rights, 52 J.Urb.L. 25 (1974); Roche, A Viable Substitute for the Exclusionary Rule: A Civil Rights Appeals Board, 30 Wash. & Lee L.Rev. 223 (1973); Spiotto, The Search and Seizure Problem Two Approaches: The Canadian Tort Remedy and the U.S. Exclusionary Rule, 1 J.Police Sci. & Ad. 36 (1973); Spiotto, Search and Seizure: An Empirical Study of the Exclusionary Rule and Its Alternatives, 2 J.Leg.Stud. 243 (1973); Comment, Federal Injunctive Relief from Illegal Search, 1967 Wash.U.L.Q. 104; Comment, The Federal Injunction as a Remedy for Unconstitutional Police Conduct, 78 Yale L.J. 143 (1968); Comment, Use of § 1983 to Remedy Unconstitutional Police Conduct: Guarding the Guards, 5 Harv.Civ.Rights-Civ.Lib.L.Rev. 104 (1970).
22
The salient and most comprehensive study is that of Oaks, cited above in n. 20. Professor (now President) Oaks reviews at length the data in previous studies and the problems involved in drawing conclusions from those data. The previous studies include, Inter alia, D. Oaks & W. Lehman, A Criminal Justice System and the Indigent: A Study of Chicago and Cook County (1968); J. Skolnick, Justice Without Trial (1st ed. 1966); Goldstein, Police Discretion not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 Yale L.J. 543 (1960); Kamisar, On the Tactics of Police-Prosecution Oriented Critics of the Courts, 49 Cornell L.Q. 436 (1964); Kamisar, Public Safety v. Individual Liberties: Some "Facts" and "Theories," 53 J.Crim.L.C. & P.S. 171 (1962); Kamisar, Wolf and Lustig Ten Years Later: Illegal State Evidence in State and Federal Courts, 43 Minn.L.Rev. 1083 (1959); Katz, The Supreme Court and the States: An Inquiry into Mapp v. Ohio in North Carolina. The Model, the Study and the Implications, 45 N.C.L.Rev. 119 (1966); Kuh, Supra, n. 18; Nagel, Testing the Effects of Excluding Illegally Seized Evidence, 1965 Wis.L.Rev. 283; Paulsen, The Exclusionary Rule and Misconduct by the Police, 52 J.Crim.L.C. & P.S. 255 (1961); Comment, Search and Seizure in Illinois: Enforcement of the Constitutional Right of Privacy, 47 Nw.U.L.Rev. 493 (1952); Weinstein, Local Responsibility for Improvement of Search and Seizure Practices, 34 Rocky Mt.L.Rev. 150 (1962); Younger, Constitutional Protection on Search and Seizure Dead?, 3 Trial 41 (Aug.-Sept. 1967); Comment, Effect of Mapp v. Ohio on Police Search-and-Seizure Practices in Narcotics Cases, 4 Colum.J.L. & Soc.Probs. 87 (1968).
Oaks discusses the types of research that may be possible, and the difficulties inherent in each. His final conclusion is straightforward:
"Writing just after the decision in Mapp v. Ohio, Francis A. Allen declared that up to that time, 'no effective quantitative measure of the rule's deterrent efficacy has been devised or applied.' (Allen Federalism and the Fourth Amendment: A Requiem for Wolf, 1961 Sup.Ct.Rev. 1, 34.) That conclusion is not yet outdated. The foregoing findings represent the largest fund of information yet assembled on the effect of the exclusionary rule, but they obviously
fall short of an empirical substantiation or refutation of the deterrent effect of the exclusionary rule." Oaks, Supra, n. 20, at 709.
More recently, Canon, Is the Exclusionary Rule in Failing Health? Some New Data and a Plea against a Precipitous Conclusion, 62 Ky.L.J. 681 (1974), discusses the data collected and reviewed by Oaks, and explores the difficulties in drawing conclusions from those data. The paper also reviews studies that appeared subsequent to the Oaks article: Spiotto, Supra, n. 21, at 243; and two papers by Michael Ban, The Impact of Mapp v. Ohio on Police Behavior (delivered at the annual meeting of the Midwest Political Science Assn., Chicago, May 1973) and Local Courts v. The Supreme Court: The Impact of Mapp v. Ohio (delivered at the annual meeting of the American Political Science Assn., New Orleans, Sept. 1973). Canon describes his own research, but his data and conclusions appear to suffer from many of the same difficulties and faults present in the prior studies, many of which are explicitly recognized. Consequently, although Canon argues in favor of retaining the exclusionary rule while Oaks argues against it, Canon's conclusions are no firmer than are Oaks': "Consequently, our argument is negative rather than positive; we are maintaining that the evidence from the 14 cities certainly does not support a conclusion that the exclusionary rule had no impact upon arrests in search-and-seizure type crimes in the years following its imposition." Canon, Supra, at 707. "Consequently, we cannot confidently attribute the increased use of search warrants entirely or even primarily to police reaction to the exclusionary rule." Id., at 713. See also Id., at 724-725 and at 725-726. Canon concedes that "the inconclusiveness of our findings is real enough," Id., at 726, but argues that the exclusionary rule should be given time to take effect. "Only after a substantial amount of time has passed do trends of changing behavior (if any) become apparent." Id., at 727. One might wonder why, if the substantial amount of time necessary for the rule to take effect is extremely relevant, the study fails to take into account the fact that over half the States have had an exclusionary rule for a significantly greater length of time than Mapp has been on the books.
Most recently, Critique, On the Limitations of Empirical Evalu-
ations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v. Calandra, 69 Nw.U.L.Rev. 740 (1974), reviews the Oaks, Canon and Spiotto papers and the studies mentioned therein. The comment discusses the design difficulties present and involved in studying the deterrent effect of the exclusionary rule in general. Although a proponent of the rule, the author concludes:
"A review of Spiotto's research and that conducted by others does not demonstrate the ineffectiveness of the exclusionary rule. Rather, it tends to illustrate the obstacles that stand in the way of any sound, empirical evaluation of the rule. When all factors are considered, there is virtually no likelihood that the Court is going to receive any 'relevant statistics' which objectively measure the 'practical efficacy' of the exclusionary rule." Id., at 763-764.
The final conclusion is clear. No empirical researcher, proponent or opponent of the rule, has yet been able to establish with any assurance whether the rule has a deterrent effect even in the situations in which it is now applied. It is, of course, virtually impossible to study the marginal deterrence added to Mapp by the Elkins silver platter rule because of the difficulty of controlling the effect of intersovereign exclusion.
We are aware of no study on the possible deterrent effect of excluding evidence in a civil proceeding.
23
For discussion of the variables involved, see Canon, Supra, n. 22; Geller, Supra, n. 21; Kaplan, Supra, n. 21; Milner, Supra, n. 20; Oaks, Supra, n. 20; Wright, Must the Criminal Go Free if the Constable Blunders?, 50 Texas L.Rev. 736 (1972); Critique, Supra.
24
Studies have attempted to compare the experience in countries without the exclusionary rule with the experience in this country. See, E. g., Oaks, Supra, n. 20, at 701-706; Spiotto, The Search and Seizure Problem Two Approaches: The Canadian Tort Remedy and the U.S. Exclusionary Rule, 1 J.Police Sci. & Ad. 36 (1973). See generally the Exclusionary Rule Regarding Illegally Seized Evidence: An International Symposium, 52 J.Crim.L.C. & P.S. 245 (1961). The difficulties in drawing conclusions from cross-cultural comparisons are self-evident. See also Canon, Supra, n. 22, at 692 n. 53.
25
See generally Id., at 713-717, 723-725; Katz, Supra, n. 22; Murphy, Judicial Review of Police Methods in Law Enforcement, 44 Texas L.Rev. 939, 941-943 (1966).
26
We do not mean to imply that more accurate studies could never be developed, or that what statisticians refer to as "triangulation" might not eventually provide us with firmer conclusions. We just do not find that the studies now available provide us with reliable conclusions.
27
If the exclusionary rule is not "strong medicine," but does provide some marginal deterrence in the criminal situations in which it is now applied, that marginal deterrence is diluted by the attenuation existing when a different sovereign uses the material in a civil proceeding, and we must again find that the marginal utility of the creation of such a rule is outweighed by the costs it imposes on society.
28
"(W)e simply decline to extend the court-made exclusionary rule to cases n which its deterrent purpose would not be served." Desist v. United States, 394 U.S. 244, 254 n. 24, 89 S.Ct. 1030, 1036, 22 L.Ed.2d 248 (1969).
"As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, 414 U.S., at 348, 94 S.Ct., at 620.
"Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force." Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182 (1974). See United States v. Peltier, 422 U.S., at 537-538, 95 S.Ct., at 2317-2318.
29
"(I)t will not do to forget that the Weeks rule is a rule arrived at only on the nicest balance of competing considerations and in view of the necessity of finding some effective judicial sanction to preserve the Constitution's search and seizure guarantees. The rule is unsupportable as reparation or compensatory dispensation to the injured criminal; its sole rational justification is the experience of its indispensability in 'exert(ing) general legal pressures to secure obedience to the Fourth Amendment on the part of federal law-enforcing officers.' As it serves this function, the rule is a needed, but grud(g)ingly taken, medicament; no, more should be swallowed than is needed to combat the disease. Granted that so many criminals must go free as will deter the constables from blundering, pursuance of this policy of liberation beyond the confines of necessity inflicts gratuitous harm on the public interest as declared by Congress." Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev. 378, 388-389 (1964) (footnotes omitted).
30
Suarez v. Commissioner of Internal Revenue, 58 T.C. 792 (1972); Pizzarello v. United States, 408 F.2d 579 (CA2), cert. denied, 396 U.S. 986, 90 S.Ct. 481, 24 L.Ed.2d 450 (1969); Knoll Associates, Inc. v. FTC, 397 F.2d 530 (CA7 1968); Powell v. Zuckert, 125 U.S.App.D.C. 55, 366 F.2d 634 (1966); Rogers v. United States, 97 F.2d 691 (CA1 1938); Anderson v. Richardson, 354 F.Supp. 363 (S.D.Fla.1973); Iowa v. Union Asphalt & Roadoils, Inc., 281 F.Supp. 391 (S.D.Iowa 1968), aff'd Sub nom. Standard Oil Co. v. Iowa, 408 F.2d 1171 (CA8 1969); United States v. Stonehill, 274 F.Supp. 420 (S.D.Cal.1967), aff'd, 405 F.2d 738 (CA9 1968), cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969); United States v. Blank, 261 F.Supp. 180 (N.D.Ohio 1966); Lassoff v. Gray, 207 F.Supp. 843 (W.D.Ky.1962).
31
The decision by the District Court to suppress the evidence did not rest upon any finding of such an agreement or participation, and from the record it does not appear that any "federal participation" existed. See Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949); Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927). As stated above in n. 3, we decide the present case on the assumption that no such agreement or arrangement existed. Respondent remains free on remand to attempt to prove that there was federal participation in fact. If he succeeds in that proof, he raises the question, not presented by this case, whether the exclusionary rule is to be applied in a civil proceeding involving an intrasovereign violation.
It is well established, of course, that the exclusionary rule, as a deterrent sanction, is not applicable where a private party or a foreign government commits the offending act. See Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); United States v. Stonehill, supra.
32
See Pizzarello v. United States, supra ; Knoll Associates, Inc. v. FTC, supra ; Powell v. Zuckert, supra ; Iowa v. Union Asphalt & Roadoils, Inc., supra ; United States v. Blank, supra. See also Hand v. United States, 441 F.2d 529 (CA5 1971).
33
We express no view on the issue whether sentencing and parole revocation proceedings constitute "civil proceedings" for the purposes of the principles announced in this opinion.
34
In Anderson v. Richardson, 354 F.Supp. 363 (S.D.Fla.1973), which otherwise might be in this category, the trial court relied on Pizzarello, supra, in enjoining a tax assessment based upon illegally seized evidence. The Government had conceded, however, that the jeopardy assessment upon which it relied could not ultimately succeed. 354 F.Supp., at 366. To the extent that dicta in that case might be relevant, the court failed to note that Pizzarello concerned an intrasovereign situation.
In United States v. Chase, 67-1 USTC P 15733 (DC 1966), the District Court relied entirely upon principles of judicial integrity in excluding from a tax proceeding evidence unconstitutionally seized by state agents. Id., at 84,477. As noted previously, the Court has since clarified the fact that the primary, if not the sole, function of the exclusionary rule is deterrence. See United States v. Calandra, supra ; United States v. Peltier, supra. See also n. 35, Infra.
35
To the extent that recent cases state that deterrence is the prime purpose of the exclusionary rule, and that "judicial integrity" is a relevant, albeit subordinate factor, we hold that in this case considerations of judicial integrity do not require exclusion of the evidence.
Judicial integrity clearly does not mean that the courts must never admit evidence obtained in violation of the Fourth Amendment. The requirement that a defendant must have standing to make a motion to suppress demonstrates as much. See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).
The primary meaning of "judicial integrity" in the context of evidentiary rules is that the courts must not commit or encourage
violations of the Constitution. In the Fourth Amendment area, however, the evidence is unquestionably accurate, and the violation is complete by the time the evidence is presented to the court. See United States v. Calandra, 414 U.S., at 347, 354, 94 S.Ct. at 619, 623, 38 L.Ed.2d 561. The focus therefore must be on the question whether the admission of the evidence encourages violations of Fourth Amendment rights. As the Court has noted in recent cases, this inquiry is essentially the same as the inquiry into whether exclusion would serve a deterrent purpose. See United States v. Peltier, 422 U.S., at 538, 95 S.Ct., at 2318; Michigan v. Tucker, 417 U.S., at 450 n. 25, 94 S.Ct., at 2367. The analysis showing that exclusion in this case has no demonstrated deterrent effect and is unlikely to have any significant such effect shows, by the same reasoning, that the admission of the evidence is unlikely to encourage violations of the Fourth Amendment. The admission of evidence in a federal civil proceeding is simply not important enough to state criminal law enforcement officers to encourage them to violate Fourth Amendment rights (and thus to obtain evidence that they are unable to use in either state or federal criminal proceedings). In addition, the officers here were clearly acting in good faith, see n. 1, Supra, a factor that the Court has recognized reduces significantly the potential deterrent effect of exclusion. See Michigan v. Tucker, 417 U.S., at 447, 94 S.Ct., at 2365; United States v. Peltier, 422 U.S., at 539, 95 S.Ct., at 2318.
*
The parties here stipulated as follows:
"On December 3, 1968, Leonard Weissman, a Los Angeles Police Department officer, informed Morris Nimovitz, a revenue officer of the Internal Revenue Service, that the plaintiff herein had been arrested for alleged bookmaking activities. Officer Weissman was the same person who had prepared the affidavit in support of the search warrant which had been quashed by Judge Lang on the basis of an insufficient affidavit in support thereof. Mr. Nimovitz proceeded to the Los Angeles Police Department and with the help of Officer Weissman, analyzed certain betting markers and information which had been seized pursuant to the aforementioned search warrant. On the basis of their analysis, the gross volume of bookmaking activities alleged to have been conducted by the plaintiff herein and Morris Aaron Levine was determined for the five days immediately preceding the arrest of the plaintiff herein and Morris Aaron Levine. Officer Weissman further informed Mr. Nimovitz that he had commenced his investigation of the plaintiff herein on September 14, 1968, which continued on an intermittent basis through November 30, 1968, the date of the arrest. On the basis of the information given by Officer Weissman to Mr. Nimovitz, the civil tax assessment was made by taking five days of activities as determined from the items seized pursuant to the aforementioned search warrant and multiplying the daily gross volume times 77 days, to wit, the period of Officer Weissman's intermittent surveillance (September 14, 1968 through November 30, 1968)."
Officer Weissman stated as follows in a deposition:
"Q Now, Sergeant Weissman, is it police department policy to call the Internal Revenue Service when you have taken a substantial sum of cash related to a bookmaking arrest?
"A I don't think that there's policy either way. I just I did it as a matter of I wouldn't say it was policy. I did it as a matter of police procedure.
"In other words, here's a person that was involved in a crime that had this kind of money, and I thought of Internal Revenue.
"Q Do you do that on a regular basis?
"A I don't do it on what I would consider a small-size book, but I considered this one a major-size book. So, I, therefore, did it.
"Q Would you do that with every major-size book that you run across with a substantial amount of cash?
"A I probably would."
| 01
|
428 U.S. 543
96 S.Ct. 3074
49 L.Ed.2d 1116
UNITED STATES, Petitioner,v.Amado MARTINEZ-FUERTE et al. Rodolfo SIFUENTES, Petitioner, v. UNITED STATES.
Nos. 74-1560, 75-5387.
Argued April 26, 1976.
Decided July 6, 1976.
Syllabus
1. The Border Patrol's routine stopping of a vehicle at a permanent checkpoint located on a major highway away from the Mexican border for brief questioning of the vehicle's occupants is consistent with the Fourth Amendment, and the stops and questioning may be made at reasonably located checkpoints in the absence of any individualized suspicion that the particular vehicle contains illegal aliens. Pp. 556-564.
(a) To require that such stops always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car necessary to identify it as a possible carrier of illegal aliens. Such a requirement also would largely eliminate any deterrent to the conduct of well-disguised smuggling operations, even though smugglers are known to use these highways regularly. P. 556-557.
(b) While the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited, the interference with legitimate traffic being minimal and checkpoint operations involving less discretionary enforcement activity than roving-patrol stops. Pp. 557-560.
(c) Under the circumstances of these checkpoint stops, which do not involve searches, the Government or public interest in making such stops outweighs the constitutionally protected interest of the private citizen. Pp. 560-562.
(d) With respect to the checkpoint involved in No. 74-1560, it is constitutional to refer motorists selectively to a secondary inspection area for limited inquiry on the basis of criteria that would not sustain a roving-patrol stop, since the intrusion is sufficiently minimal that no particularized reason need exist to justify it. P. 563-564.
2. Operation of a fixed checkpoint need not be authorized in advance by a judicial warrant. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, distinguished. The visible manifestations of the field officers' authority at a checkpoint provide assurances to motorists that the officers are acting lawfully. Moreover, the purpose of a warrant in preventing hindsight from coloring the evaluation of the reasonableness of a search or seizure is inapplicable here, since the reasonableness of checkpoint stops turns on factors such as the checkpoint's location and method of operation. These factors are not susceptible of the distortion of hindsight, and will be open to post-stop review notwithstanding the absence of a warrant. Nor is the purpose of a warrant in substituting a magistrate's judgment for that of the searching or seizing officer applicable, since the need for this is reduced when the decision to "seize" is not entirely in the hands of the field officer and deference is to be given to the administrative decisions of higher ranking officials in selecting the checkpoint locations. Pp. 564-566.
No. 74-1560, 514 F.2d 308, reversed and remanded; No. 75-5387, affirmed.
Ballard Bennett, Weslaco, Tex., for petitioner in No. 75-5387, by Mark L. Evans, Washington, D. C., for petitioner in No. 74-1560 and respondent in No. 75-5387.
Charles M. Sevilla, San Diego, Cal., for respondent in No. 75-1560.
Mr. Justice POWELL delivered the opinion of the Court.
1
These cases involve criminal prosecutions for offenses relating to the transportation of illegal Mexican aliens. Each defendant was arrested at a permanent checkpoint operated by the Border Patrol away from the international border with Mexico, and each sought the exclusion of certain evidence on the ground that the operation of the checkpoint was incompatible with the Fourth Amendment. In each instance whether the Fourth Amendment was violated turns primarily on whether a vehicle may be stopped at a fixed checkpoint for brief questioning of its occupants even though there is no reason to believe the particular vehicle contains illegal aliens. We reserved this question last Term in United States v. Ortiz, 422 U.S. 891, 897 n. 3, 95 S.Ct. 2585, 2589, 45 L.Ed.2d 623 (1975). We hold today that such stops are consistent with the Fourth Amendment. We also hold that the operation of a fixed checkpoint need not be authorized in advance by a judicial warrant.
2
* A.
3
The respondents in No. 74-1560 are defendants in three separate prosecutions resulting from arrests made on three different occasions at the permanent immigration checkpoint on Interstate 5 near San Clemente, Cal. Interstate 5 is the principal highway between San Diego and Los Angeles, and the San Clemente checkpoint is 66 road miles north of the Mexican border. We previously have described the checkpoint as follows:
4
" 'Approximately one mile south of the checkpoint is a large black on yellow sign with flashing yellow lights over the highway stating "ALL VEHICLES, STOP AHEAD, 1 MILE." Three-quarters of a mile further north are two black on yellow signs suspended over the highway with flashing lights stating "WATCH FOR BRAKE LIGHTS." At the checkpoint, which is also the location of a State of California weighing station, are two large signs with flashing red lights suspended over the highway. These signs each state "STOP HERE U. S. OFFICERS." Placed on the highway are a number of orange traffic cones funneling traffic into two lanes where a Border Patrol agent in full dress uniform, standing behind a white on red "STOP" sign checks traffic. Blocking traffic in the unused lanes are official U. S. Border Patrol vehicles with flashing red lights. In addition, there is a permanent building which houses the Border Patrol office and temporary detention facilities. There are also floodlights for nighttime operation.' " United States v. Ortiz, supra, at 893, 95 S.Ct., at 2587, quoting United States v. Baca, 368 F.Supp. 398, 410-411 (SD Cal.1973).
5
The "point" agent standing between the two lanes of traffic visually screens all northbound vehicles, which the checkpoint brings to a virtual, if not a complete, halt.1 Most motorists are allowed to resume their progress without any oral inquiry or close visual examination. In a relatively small number of cases the "point" agent will conclude that further inquiry is in order. He directs these cars to a secondary inspection area, where their occupants are asked about their citizenship and immigration status. The Government informs us that at San Clemente the average length of an investigation in the secondary inspection area is three to five minutes. Brief for United States 53. A direction to stop in the secondary inspection area could be based on something suspicious about a particular car passing through the checkpoint, but the Government concedes that none of the three stops at issue in No. 74-1560 was based on any articulable suspicion. During the period when these stops were made, the checkpoint was operating under a magistrate's "warrant of inspection," which authorized the Border Patrol to conduct a routine-stop operation at the San Clemente location.2
6
We turn now to the particulars of the stops involved in No. 74-1560, and the procedural history of the case. Respondent Amado Martinez-Fuerte approached the checkpoint driving a vehicle containing two female passengers. The women were illegal Mexican aliens who had entered the United States at the San Ysidro port of entry by using false papers and rendezvoused with Martinez-Fuerte in San Diego to be transported northward. At the checkpoint their car was directed to the secondary inspection area. Martinez-Fuerte produced documents showing him to be a lawful resident alien, but his passengers admitted being present in the country unlawfully. He was charged, Inter alia, with two counts of illegally transporting aliens in violation of 8 U.S.C. § 1324(a)(2). He moved before trial to suppress all evidence stemming from the stop on the ground that the operation of the checkpoint was in violation of the Fourth Amendment.3 The motion to suppress was denied, and he was convicted on both counts after a jury trial.
7
Respondent Jose Jiminez-Garcia attempted to pass through the checkpoint while driving a car containing one passenger. He had picked the passenger up by prearrangement in San Ysidro after the latter had been smuggled across the border. Questioning at the secondary inspection area revealed the illegal status of the passenger, and Jiminez-Garcia was charged in two counts with illegally transporting an alien, 8 U.S.C. § 1324(a)(2), and conspiring to commit that offense, 18 U.S.C. § 371. His motion to suppress the evidence derived from the stop was granted.
8
Respondents Raymond Guillen and Fernando Medrano-Barragan approached the checkpoint with Guillen driving and Medrano-Barragan and his wife as passengers. Questioning at the secondary inspection area revealed that Medrano-Barragan and his wife were illegal aliens. A subsequent search of the car uncovered three other illegal aliens in the trunk. Medrano-Barragan had led the other aliens across the border at the beach near Tijuana, Mexico, where they rendezvoused with Guillen, a United States citizen. Guillen and Medrano-Barragan were jointly indicted on four counts of illegally transporting aliens, 8 U.S.C. § 1324(a)(2), four counts of inducing the illegal entry of aliens, § 1324(a)(4), and one conspiracy count, 18 U.S.C. § 371. The District Court granted the defendants' motion to suppress.
9
Martinez-Fuerte appealed his conviction, and the Government appealed the granting of the motions to suppress in the respective prosecutions of Jiminez-Garcia and of Guillen and Medrano-Barragan.4 The Court of Appeals for the Ninth Circuit consolidated the three appeals, which presented the common question whether routine stops and interrogations at checkpoints are consistent with the Fourth Amendment.5 The Court of Appeals held, with one judge dissenting, that these stops violated the Fourth Amendment, concluding that a stop for inquiry is constitutional only if the Border Patrol reasonably suspects the presence of illegal aliens on the basis of articulable facts. It reversed Martinez-Fuerte's conviction, and affirmed the orders to suppress in the other cases. 514 F.2d 308 (1975). We reverse and remand.
B
10
Petitioner in No. 75-5387, Rodolfo Sifuentes, was arrested at the permanent immigration checkpoint on U. S. Highway 77 near Sarita, Tex. Highway 77 originates in Brownsville, and it is one of the two major highways running north from the lower Rio Grande valley. The Sarita checkpoint is about 90 miles north of Brownsville, and 65-90 miles from the nearest points of the Mexican border. The physical arrangement of the checkpoint resembles generally that at San Clemente, but the checkpoint is operated differently in that the officers customarily stop all northbound motorists for a brief inquiry. Motorists whom the officers recognize as local inhabitants, however, are waved through the checkpoint without inquiry. Unlike the San Clemente checkpoint the Sarita operation was conducted without a judicial warrant.
11
Sifuentes drove up to the checkpoint without any visible passengers. When an agent approached the vehicle, however, he observed four passengers, one in the front seat and the other three in the rear, slumped down in the seats. Questioning revealed that each passenger was an illegal alien, although Sifuentes was a United States citizen. The aliens had met Sifuentes in the United States, by prearrangement, after swimming across the Rio Grande.
12
Sifuentes was indicted on four counts of illegally transporting aliens. 8 U.S.C. § 1324(a)(2). He moved on Fourth Amendment grounds to suppress the evidence derived from the stop. The motion was denied and he was convicted after a jury trial. Sifuentes renewed his Fourth Amendment argument on appeal, contending primarily that stops made without reason to believe a car is transporting aliens illegally are unconstitutional. The United States Court of Appeals for the Fifth Circuit affirmed the conviction, 517 F.2d 1402 (1975), relying on its opinion in United States v. Santibanez, 517 F.2d 922 (1975). There the Court of Appeals had ruled that routine checkpoint stops are consistent with the Fourth Amendment. We affirm.6
II
13
The Courts of Appeals for the Ninth and the Fifth Circuits are in conflict on the constitutionality of a law enforcement technique considered important by those charged with policing the Nation's borders. Before turning to the constitutional question, we examine the context in which it arises.
A.
14
It has been national policy for many years to limit immigration into the United States. Since July 1, 1968, the annual quota for immigrants from all independent countries of the Western Hemisphere, including Mexico, has been 120,000 persons. Act of Oct. 3, 1965, § 21(e), 79 Stat. 921. Many more aliens than can be accommodated under the quota want to live and work in the United States. Consequently, large numbers of aliens seek illegally to enter or to remain in the United States. We noted last Term that "(e)stimates of the number of illegal immigrants (already) in the United States vary widely. A conservative estimate in 1972 produced a figure of about one million, but the Immigration and Naturalization Service now suggests there may be as many as 10 or 12 million aliens illegally in the country." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975) (footnote omitted). It is estimated that 85% of the illegal immigrants are from Mexico, drawn by the fact that economic opportunities are significantly greater in the United States than they are in Mexico. United States v. Baca, 368 F.Supp., at 402.
15
Interdicting the flow of illegal entrants from Mexico poses formidable law enforcement problems. The principal problem arises from surreptitious entries. Id., at 405. The United States shares a border with Mexico that is almost 2,000 miles long, and much of the border area is uninhabited desert or thinly populated arid land. Although the Border Patrol maintains personnel, electronic equipment, and fences along portions of the border, it remains relatively easy for individuals to enter the United States without detection. It also is possible for an alien to enter unlawfully at a port of entry by the use of falsified papers or to enter lawfully but violate restrictions of entry in an effort to remain in the country unlawfully.7 Once within the country, the aliens seek to travel inland to areas where employment is believed to be available, frequently meeting by prearrangement with friends or professional smugglers who transport them in private vehicles. United States v. Brignoni-Ponce, supra, 422 U.S., at 879, 95 S.Ct., at 2579.
16
The Border Patrol conducts three kinds of inland traffic-checking operations in an effort to minimize illegal immigration. Permanent checkpoints, such as those at San Clemente and Sarita, are maintained at or near intersections of important roads leading away from the border. They operate on a coordinated basis designed to avoid circumvention by smugglers and others who transport the illegal aliens. Temporary checkpoints, which operate like permanent ones, occasionally are established in other strategic locations. Finally, roving patrols are maintained to supplement the checkpoint system. See Almeida-Sanchez v. United States, 413 U.S. 266, 268, 93 S.Ct. 2535, 2537, 37 L.Ed.2d 596 (1973).8 In fiscal 1973, 175,511 deportable aliens were apprehended throughout the Nation by "line watch" agents stationed at the border itself. Traffic-checking operations in the interior apprehended approximately 55,300 more deportable aliens.9 Most of the traffic-checking apprehensions were at checkpoints, though precise figures are not available. United States v. Baca, supra, at 405, 407, and n. 2.
B
17
We are concerned here with permanent checkpoints, the locations of which are chosen on the basis of a number of factors. The Border Patrol believes that to assure effectiveness, a checkpoint must be (i) distant enough from the border to avoid interference with traffic in populated areas near the border, (ii) close to the confluence of two or more significant roads leading away from the border, (iii) situated in terrain that restricts vehicle passage around the checkpoint, (iv) on a stretch of highway compatible with safe operation, and (v) beyond the 25-mile zone in which "border passes," see n. 7, Supra, are valid. United States v. Baca, supra, at 406.
18
The record in No. 74-1560 provides a rather complete picture of the effectiveness of the San Clemente checkpoint. Approximately 10 million cars pass the checkpoint location each year, although the checkpoint actually is in operation only about 70% of the time.10 In calendar year 1973, approximately 17,000 illegal aliens were apprehended there. During an eight-day period in 1974 that included the arrests involved in No. 74-1560, roughly 146,000 vehicles passed through the checkpoint during 124 1/6 hours of operation. Of these, 820 vehicles were referred to the secondary inspection area, where Border Patrol agents found 725 deportable aliens in 171 vehicles. In all but two cases, the aliens were discovered without a conventional search of the vehicle. A similar rate of apprehensions throughout the year would have resulted in an annual total of over 33,000, although the Government contends that many illegal aliens pass through the checkpoint undetected. The record in No. 75-5387 does not provide comparable statistical information regarding the Sarita checkpoint. While it appears that fewer illegal aliens are apprehended there, it may be assumed that fewer pass by undetected, as every motorist is questioned.
III
19
The Fourth Amendment imposes limits on search-and-seizure powers in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. See United States v. Brignoni-Ponce, 422 U.S., at 878, 95 S.Ct., at 2578; United States v. Ortiz, 422 U.S., at 895, 95 S.Ct., at 2588; Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). In delineating the constitutional safeguards applicable in particular contexts, the Court has weighed the public interest against the Fourth Amendment interest of the individual, United States v. Brignoni-Ponce, supra, 422 U.S., at 878, 95 S.Ct., at 2578; Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889 (1968), a process evident in our previous cases dealing with Border Patrol traffic-checking operations.
20
In Almeida-Sanchez v. United States, supra, the question was whether a roving-patrol unit constitutionally could search a vehicle for illegal aliens simply because it was in the general vicinity of the border. We recognized that important law enforcement interests were at stake but held that searches by roving patrols impinged so significantly on Fourth Amendment privacy interests that a search could be conducted without consent only if there was probable cause to believe that a car contained illegal aliens, at least in the absence of a judicial warrant authorizing random searches by roving patrols in a given area. Compare 413 U.S., at 273, 93 S.Ct., at 2539, with id., at 283-285, 93 S.Ct., at 2544-2546 (Powell, J., concurring), and id., at 288, 93 S.Ct., at 2547 (White, J., dissenting). We held in United States v. Ortiz, supra, that the same limitations applied to vehicle searches conducted at a permanent checkpoint.
21
In United States v. Brignoni-Ponce, supra, however, we recognized that other traffic-checking practices involve a different balance of public and private interests and appropriately are subject to less stringent constitutional safeguards. The question was under what circumstances a roving patrol could stop motorists in the general area of the border for brief inquiry into their residence status. We found that the interference with Fourth Amendment interests involved in such a stop was "modest," 422 U.S., at 880, 95 S.Ct., at 2579, while the inquiry served significant law enforcement needs. We therefore held that a roving-patrol stop need not be justified by probable cause and may be undertaken if the stopping officer is "aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that a vehicle contains illegal aliens. Id., at 884, 95 S.Ct., at 2582.11
IV
22
It is agreed that checkpoint stops are "seizures" within the meaning of the Fourth Amendment. The defendants contend primarily that the routine stopping of vehicles at a checkpoint is invalid because Brignoni-Ponce must be read as proscribing any stops in the absence of reasonable suspicion. Sifuentes alternatively contends in No. 75-5387 that routine checkpoint stops are permissible only when the practice has the advance judicial authorization of a warrant. There was a warrant authorizing the stops at San Clemente but none at Sarita. As we reach the issue of a warrant requirement only if reasonable suspicion is not required, we turn first to whether reasonable suspicion is a prerequisite to a valid stop, a question to be resolved by balancing the interests at stake.
A.
23
Our previous cases have recognized that maintenance of a traffic-checking program in the interior is necessary because the flow of illegal aliens cannot be controlled effectively at the border. We note here only the substantiality of the public interest in the practice of routine stops for inquiry at permanent checkpoints, a practice which the Government identifies as the most important of the traffic-checking operations. Brief for United States in No. 74-1560, pp. 19-20.12 These checkpoints are located on important highways; in their absence such highways would offer illegal aliens a quick and safe route into the interior. Routine checkpoint inquiries apprehend many smugglers and illegal aliens who succumb to the lure of such highways. And the prospect of such inquiries forces others onto less efficient roads that are less heavily traveled, slowing their movement and making them more vulnerable to detection by roving patrols. Cf. United States v. Brignoni-Ponce, 422 U.S., at 883-885, 95 S.Ct., at 2581-2582.
24
A requirement that stops on major routes inland always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens. In particular, such a requirement would largely eliminate any deterrent to the conduct of well-disguised smuggling operations, even though smugglers are known to use these highways regularly.
B
25
While the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited. The stop does intrude to a limited extent on motorists' right to "free passage without interruption," Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925), and arguably on their right to personal security. But it involves only a brief detention of travelers during which
26
" '(a)ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.' " United States v. Brignoni-Ponce, supra, 422 U.S., at 880, 95 S.Ct., at 2579.
27
Neither the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited to what can be seen without a search. This objective intrusion the stop itself, the questioning, and the visual inspection also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion the generating of concern or even fright on the part of lawful travelers is appreciably less in the case of a checkpoint stop. In Ortiz, we noted:
28
"(T)he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion." 422 U.S., at 894-895, 95 S.Ct., at 2587.
29
In Brignoni-Ponce, we recognized that Fourth Amendment analysis in this context also must take into account the overall degree of interference with legitimate traffic. 422 U.S., at 882-883, 95 S.Ct., at 2580-2581. We concluded there that random roving-patrol stops could not be tolerated because they "would subject the residents of . . . (border) areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers. . . . (They) could stop motorists at random for questioning, day or night, anywhere within 100 air miles of the 2,000-mile border, on a city street, a busy highway, or a desert road . . .." Ibid. There also was a grave danger that such unreviewable discretion would be abused by some officers in the field. Ibid.
30
Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops. Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review.13
31
The defendants arrested at the San Clemente checkpoint suggest that its operation involves a significant extra element of intrusiveness in that only a small percentage of cars are referred to the secondary inspection area, thereby "stigmatizing" those diverted and reducing the assurances provided by equal treatment of all motorists. We think defendants overstate the consequences. Referrals are made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy. The objective intrusion of the stop and inquiry thus remains minimal. Selective referral may involve some annoyance, but it remains true that the stops should not be frightening or offensive because of their public and relatively routine nature. Moreover, selective referrals rather than questioning the occupants of every car tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public.
C
32
The defendants note correctly that to accommodate public and private interests some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure.14 See Terry v. Ohio, 392 U.S., at 21, and n. 18, 88 S.Ct., at 1880. But the Fourth Amendment imposes no irreducible requirement of such suspicion. This is clear from Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). See also Almeida-Sanchez v. United States, 413 U.S., at 283-285, 93 S.Ct., at 2544-2546 (Powell, J., concurring); Id., at 288, 93 S.Ct., at 2547 (White, J., dissenting); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Carroll v. United States, 267 U.S., at 154, 45 S.Ct., at 285. In Camara the Court required an "area" warrant to support the reasonableness of inspecting private residences within a particular area for building code violations, but recognized that "specific knowledge of the condition of the particular dwelling" was not required to enter any given residence. 387 U.S., at 538, 87 S.Ct., at 1736. In so holding, the Court examined the government interests advanced to justify such routine intrusions "upon the constitutionally protected interests of the private citizen," Id., at 534-535, 87 S.Ct., at 1734, and concluded that under the circumstances the government interests outweighed those of the private citizen.
33
We think the same conclusion is appropriate here, where we deal neither with searches nor with the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection. See, e. g., McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). As we have noted earlier, one's expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence. United States v. Ortiz, 422 U.S., at 896 n. 2, 95 S.Ct., at 2588; see Cardwell v. Lewis, 417 U.S. 583, 590-591, 94 S.Ct. 2464, 2469-2470, 41 L.Ed.2d 325 (1974) (plurality opinion). And the reasonableness of the procedures followed in making these checkpoint stops makes the resulting intrusion on the interests of motorists minimal. On the other hand, the purpose of the stops is legitimate and in the public interest, and the need for this enforcement technique is demonstrated by the records in the cases before us. Accordingly, we hold that the stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located checkpoints.15
34
We further believe that it is constitutional to refer motorists selectively to the secondary inspection area at the San Clemente checkpoint on the basis of criteria that would not sustain a roving-patrol stop. Thus, even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry,16 we perceive no constitutional violation. Cf. United States v. Brignoni-Ponce, 422 U.S., at 885-887, 95 S.Ct., at 2582-2583. As the intrusion here is sufficiently minimal that no particularized reason need exist to justify it, we think it follows that the Border Patrol officers must have wide discretion in selecting the motorists to be diverted for the brief questioning involved.17
V
35
Sifuentes' alternative argument is that routine stops at a checkpoint are permissible only if a warrant has given judicial authorization to the particular checkpoint location and the practice of routine stops. A warrant requirement in these circumstances draws some support from Camara, where the Court held that, absent consent, an "area" warrant was required to make a building code inspection, even though the search could be conducted absent cause to believe that there were violations in the building searched.18
36
We do not think, however, that Camara is an apt model. It involved the search of private residences, for which a warrant traditionally has been required. See, E. g., McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). As developed more fully above, the strong Fourth Amendment interests that justify the warrant requirement in that context are absent here. The degree of intrusion upon privacy that may be occasioned by a search of a house hardly can be compared with the minor interference with privacy resulting from the mere stop for questioning as to residence. Moreover, the warrant requirement in Camara served specific Fourth Amendment interests to which a warrant requirement here would make little contribution. The Court there said:
37
"(W)hen (an) inspector (without a warrant) demands entry, the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization." 387 U.S., at 532, 87 S.Ct., at 1732.
38
A warrant provided assurance to the occupant on these scores. We believe that the visible manifestations of the field officers' authority at a checkpoint provide substantially the same assurances in this case.
39
Other purposes served by the requirement of a warrant also are inapplicable here. One such purpose is to prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure. Cf. United States v. Watson, 423 U.S. 411, 455-456, n. 22, 96 S.Ct. 820, 843, 46 L.Ed.2d 598 (1976) (Marshall, J., dissenting). The reasonableness of checkpoint stops, however, turns on factors such as the location and method of operation of the checkpoint, factors that are not susceptible to the distortion of hindsight, and therefore will be open to post-stop review notwithstanding the absence of a warrant. Another purpose for a warrant requirement is to substitute the judgment of the magistrate for that of the searching or seizing officer. United States v. United States District Court, 407 U.S. 297, 316-318, 92 S.Ct. 2125, 2136-2137, 32 L.Ed.2d 752 (1972). But the need for this is reduced when the decision to seize" is not entirely in the hands of the officer in the field, and deference is to be given to the administrative decisions of higher ranking officials.
VI
40
In summary, we hold that stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment and need not be authorized by warrant.19 The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop. See Terry v. Ohio, 392 U.S., at 24-27, 88 S.Ct., at 1881-1883; United States v. Brignoni-Ponce,, 422 U.S., at 881-882, 95 S.Ct., at 2580-2581. We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search. United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975). And our holding today is limited to the type of stops described in this opinion. "(A)ny further detention . . . must be based on consent or probable cause." United States v. Brignoni-Ponce, supra, at 882, 95 S.Ct., at 2580. None of the defendants in these cases argues that the stopping officers exceeded these limitations. Consequently, we affirm the judgment of the Court of Appeals for the Fifth Circuit, which had affirmed the conviction of Sifuentes. We reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case with directions to affirm the conviction of Martinez-Fuerte and to remand the other cases to the District Court for further proceedings.
41
It is so ordered.
42
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
43
Today's decision is the ninth this Term marking the continuing evisceration of Fourth Amendment protections against unreasonable searches and seizures. Early in the Term, Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975), permitted the warrantless search of an automobile in police custody despite the unreasonableness of the custody and opportunity to obtain a warrant. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), held that regardless of whether opportunity exists to obtain a warrant, an arrest in a public place for a previously committed felony never requires a warrant, a result certainly not fairly supported by either history or precedent. See Id., at 433, 96 S.Ct., at 832. (Marshall, J., dissenting). United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), went further and approved the warrantless arrest for a felony of a person standing on the front porch of her residence. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), narrowed the Fourth Amendment's protection of privacy by denying the existence of a protectible interest in the compilation of checks, deposit slips, and other records pertaining to an individual's bank account. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precluded the assertion of Fourth Amendment claims in federal collateral relief proceedings. United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976), held that evidence unconstitutionally seized by a state officer is admissible in a civil proceeding by or against the United States. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), approved sweeping inventory searches of automobiles in police custody irrespective of the particular circumstances of the case. Finally, in Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), the Court, in practical effect, weakened the Fourth Amendment prohibition against general warrants.
44
Consistent with this purpose to debilitate Fourth Amendment protections, the Court's decision today virtually empties the Amendment of its reasonableness requirement by holding that law enforcement officials manning fixed checkpoint stations who make standardless seizures of persons do not violate the Amendment. This holding cannot be squared with this Court's recent decisions in United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); and Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). I dissent.
45
While the requisite justification for permitting a search or seizure may vary in certain contexts, compare Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), even in the exceptional situations permitting intrusions on less than probable cause, it has long been settled that justification must be measured by objective standards. Thus in the seminal decision justifying intrusions on less-than-probable cause, Terry v. Ohio, supra, The Court said:
46
"The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an Objective standard . . . . Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction." 392 U.S., at 21-22, 88 S.Ct., at 1880 (emphasis added, footnote omitted).
47
"This demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence." 392 U.S., at 21 n. 18, 88 S.Ct., at 1880.
48
Terry thus made clear what common sense teaches: Conduct, to be reasonable, must pass muster under objective standards applied to specific facts.
49
We are told today, however, that motorists without number may be individually stopped, questioned, visually inspected, and then further detained without even a showing of articulable suspicion, see ante, at 547, let alone the heretofore constitutional minimum of reasonable suspicion, a result that permits search and seizure to rest upon "nothing more substantial than inarticulate hunches." This defacement of Fourth Amendment protections is arrived at by a balancing process that overwhelms the individual's protection against unwarranted official intrusion by a governmental interest said to justify the search and seizure. But that method is only a convenient cover for condoning arbitrary official conduct, for the governmental interests relied on as warranting intrusion here are the same as those in Almeida-Sanchez and Ortiz, which required a showing of probable cause for roving-patrol and fixed checkpoint searches, and Brignoni-Ponce, which required at least a showing of reasonable suspicion based on specific articulable facts to justify roving-patrol stops. Absent some difference in the nature of the intrusion, the same minimal requirement should be imposed for checkpoint stops.
50
The Court assumes, and I certainly agree, that persons stopped at fixed checkpoints, whether or not referred to a secondary detention area, are "seized" within the meaning of the Fourth Amendment. Moreover, since the vehicle and its occupants are subjected to a "visual inspection," the intrusion clearly exceeds mere physical restraint, for officers are able to see more in a stopped vehicle than in vehicles traveling at normal speeds down the highway. As the Court concedes, ante, at 558, the checkpoint stop involves essentially the same intrusions as a roving-patrol stop, yet the Court provides no principled basis for distinguishing checkpoint stops.
51
Certainly that basis is not provided in the Court's reasoning that the subjective intrusion here is appreciably less than in the case of a stop by a roving patrol. Brignoni-Ponce nowhere bases the requirement of reasonable suspicion upon the subjective nature of the intrusion. In any event, the subjective aspects of checkpoint stops, even if different from the subjective aspects of roving-patrol stops, just as much require some principled restraint on law enforcement conduct. The motorist whose conduct has been nothing but innocent and this is overwhelmingly the case surely resents his own detention and inspection. And checkpoints, unlike roving stops, detain thousands of motorists, a dragnet-like procedure offensive to the sensibilities of free citizens. Also, the delay occasioned by stopping hundreds of vehicles on a busy highway is particularly irritating.
52
In addition to overlooking these dimensions of subjective intrusion, the Court, without explanation, also ignores one major source of vexation. In abandoning any requirement of a minimum of reasonable suspicion, or even articulable suspicion, the Court in every practical sense renders meaningless, as applied to checkpoint stops, the Brignoni-Ponce holding that "standing alone (Mexican appearance) does not justify stopping all Mexican-Americans to ask if they are aliens."1 422 U.S., at 887, 95 S.Ct., at 2583. Since the objective is almost entirely the Mexican illegally in the country, checkpoint officials, uninhibited by any objective standards and therefore free to stop any or all motorists without explanation or excuse, wholly on whim, will perforce target motorists of Mexican appearance. The process will then inescapably discriminate against citizens of Mexican ancestry and Mexican aliens lawfully in this country for no other reason than that they unavoidably possess the same "suspicious" physical and grooming characteristics of illegal Mexican aliens.
53
Every American citizen of Mexican ancestry and every Mexican alien lawfully in this country must know after today's decision that he travels the fixed checkpoint highways at the risk of being subjected not only to a stop, but also to detention and interrogation, both prolonged and to an extent far more than for non-Mexican appearing motorists. To be singled out for referral and to be detained and interrogated must be upsetting to any motorist. One wonders what actual experience supports my Brethren's conclusion that referrals "should not be frightening or offensive because of their public and relatively routine nature." Ante, at 560.2 In point of fact, referrals, viewed in context, are not relatively routine; thousands are otherwise permitted to pass. But for the arbitrarily selected motorists who must suffer the delay and humiliation of detention and interrogation, the experience can obviously be upsetting.3 And that experience is particularly vexing for the motorist of Mexican ancestry who is selectively referred, knowing that the officers' target is the Mexican alien. That deep resentment will be stirred by a sense of unfair discrimination is not difficult to foresee.4
54
In short, if a balancing process is required, the balance should be struck, as in Brignoni-Ponce, to require that Border Patrol officers act upon at least reasonable suspicion in making checkpoint stops. In any event, even if a different balance were struck, the Court cannot, without ignoring the Fourth Amendment requirement of reasonableness, justify wholly unguided seizures by officials manning the checkpoints. The Court argues, however, that practicalities necessitate otherwise: "A requirement that stops on major routes inland always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens." Ante, at 557.
55
As an initial matter, whatever force this argument may have, it cannot apply to the secondary detentions that occurred in No. 74-1560. Once a vehicle has been slowed and observed at a checkpoint, ample opportunity exists to formulate the reasonable suspicion which, if it actually exists, would justify further detention. Indeed, though permitting roving stops based on reasonable suspicion, Brignoni-Ponce required that "any further detention or search must be based on (the greater showing of) consent or probable cause." 422 U.S., at 882, 95 S.Ct., at 2580. The Court today, however, does not impose a requirement of even reasonable suspicion for these secondary stops.
56
The Court's rationale is also not persuasive because several of the factors upon which officers may rely in establishing reasonable suspicion are readily ascertainable, regardless of the flow of traffic. For example, with checkpoint stops as with roving-patrol stops, "(a)spects of the vehicle itself may justify suspicion." Id., at 885, 95 S.Ct., at 2582. Thus it is relevant that the vehicle is a certain type of station wagon, appears to be heavily loaded, contains an extraordinary number of persons, or contains persons trying to hide. See ibid. If such factors are satisfactory to permit the imposition of a reasonable-suspicion requirement in the more demanding circumstances of a roving patrol, where officers initially deal with a vehicle traveling, not at a crawl, but at highway speeds, they clearly should suffice in the circumstances of a checkpoint stop.
57
Finally, the Court's argument fails for more basic reasons. There is no principle in the jurisprudence of fundamental rights which permits constitutional limitations to be dispensed with merely because they cannot be conveniently satisfied. Dispensing with reasonable suspicion as a prerequisite to stopping and inspecting motorists because the inconvenience of such a requirement would make it impossible to identify a given car as a possible carrier of aliens is no more justifiable than dispensing with probable cause as prerequisite to the search of an individual because the inconvenience of such a requirement would make it impossible to identify a given person in a high-crime area as a possible carrier of concealed weapons. "The needs of law enforcement stand in constant tension with the Constitution's protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards." Almeida-Sanchez v. United States, 413 U.S., at 273, 93 S.Ct., at 2540.
58
The Court also attempts to justify its approval of standardless conduct on the ground that checkpoint stops "involve less discretionary enforcement activity" than roving stops. Ante, at 559. This view is at odds with its later more revealing statement that "officers must have wide discretion in selecting the motorists to be diverted for the brief questioning involved." Ante, at 564. Similarly unpersuasive is the statement that "since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops." Ante, at 559.5 The Fourth Amendment standard of reasonableness admits of neither intrusion at the discretion of law enforcement personnel nor abusive or harassing stops, however infrequent. Action based merely on whatever may pique the curiosity of a particular officer is the antithesis of the objective standards requisite to reasonable conduct and to avoiding abuse and harassment. Such action, which the Court now permits, has expressly been condemned as contrary to basic Fourth Amendment principles. Certainly today's holding is far removed from the proposition emphatically affirmed in United States v. United States District Court, 407 U.S. 297, 317, 92 S.Ct. 2125, 2136, 32 L.Ed.2d 752 (1972), that "those charged with . . . investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy . . . ." Indeed, it is far removed from the even more recent affirmation that "the central concern of the Fourth Amendment is to protect liberty and privacy from arbitrary and oppressive interference by government officials." United States v. Ortiz, 422 U.S., at 895, 95 S.Ct., at 2588.6
59
The cornerstone of this society, indeed of any free society, is orderly procedure. The Constitution, as originally adopted, was therefore, in great measure, a procedural document. For the same reasons the drafters of the Bill of Rights largely placed their faith in procedural limitations on government action. The Fourth Amendment's requirement that searches and seizures be reasonable enforces this fundamental understanding in erecting its buffer against the arbitrary treatment of citizens by government. But to permit, as the Court does today, police discretion to supplant the objectivity of reason and, thereby, expediency to reign in the place of order, is to undermine Fourth Amendment safeguards and threaten erosion of the cornerstone of our system of a government, for, as Mr. Justice Frankfurter reminded us, "(t)he history of American freedom is, in no small measure, the history of procedure." Malinski v. New York, 324 U.S. 401, 414, 65 S.Ct. 781, 787, 89 L.Ed. 1029 (1945).
1
The parties disagree as to whether vehicles not referred to the secondary inspection area are brought to a complete halt or merely "roll" slowly through the checkpoint. Resolution of this dispute is not necessary here, as we may assume, Arguendo, that all motorists passing through the checkpoint are so slowed as to have been "seized."
2
The record does not reveal explicitly why a warrant was sought. Shortly before the warrant application, however, the Court of Appeals for the Ninth Circuit had held unconstitutional a routine stop and search conducted at a permanent checkpoint without such a warrant. See United States v. Bowen, 500 F.2d 960 (1974), aff'd on other grounds, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641 (1975); United States v. Juarez-Rodriguez, 498 F.2d 7 (1974). Soon after the warrant issued, the Court of Appeals also held unconstitutional routine checkpoint stops conducted without a warrant. See United States v. Esquer-Rivera, 500 F.2d 313 (1974). See also n. 15, Infra.
3
Each of the defendants in No. 74-1560 and the defendant in No. 75-5387 sought to suppress, among other things, the testimony of one or more illegal aliens. We noted in United States v. Brignoni-Ponce, 422 U.S. 873, 876 n. 2, 95 S.Ct. 2574, 2577, 45 L.Ed.2d 607 (1975), that "(t)here may be room to question whether voluntary testimony of a witness at trial, as opposed to a government agent's testimony about objects seized or statements overheard, is subject to suppression . . . ." The question again is not before us.
4
The prosecution of Martinez-Fuerte was before a different District Judge than were the other cases.
5
The principal question before the Court of Appeals was the constitutional significance of the "warrant of inspection" under which the checkpoint was operating when the defendants were stopped. See n. 15, Infra. The Government, however, preserved the question whether routine checkpoint stops could be made absent a warrant.
6
We initially granted the Government's petition for a writ of certiorari in No. 74-1560, 423 U.S. 822, 96 S.Ct. 35, 46 L.Ed.2d 38, and later granted Sifuentes' petition in No. 75-5387 and directed that the cases be argued in tandem. 423 U.S. 945, 96 S.Ct. 355, 46 L.Ed.2d 277. Subsequently we granted the motion of the Solicitor General to consolidate the cases for oral argument. 425 U.S. 931, 96 S.Ct. 1660, 48 L.Ed.2d 173.
7
The latter occurs particularly where "border passes" are issued to simplify passage between interrelated American and Mexican communities along the border. These passes authorize travel within 25 miles of the border for a 72-hour period. See 8 CFR § 212.6 (1976).
8
All these operations are conducted pursuant to statutory authorizations empowering Border Patrol agents to interrogate those believed to be aliens as to their right to be in the United States and to inspect vehicles for aliens. 8 U.S.C. §§ 1357(a)(1), (a)(3). Under current regulations the authority conferred by § 1357(a)(3) may be exercised anywhere within 100 air miles of the border. 8 CFR § 287.1(a) (1976).
9
As used in these statistics, the term "deportable alien" means "a person who has been found to be deportable by an immigration judge, or who admits his deportability upon questioning by official agents." United States v. Baca, 368 F.Supp. 398, 404 (SD Cal.1973). Most illegal aliens are simply deported without prosecution. The Government routinely prosecutes persons thought to be smugglers, many of whom are lawfully in the United States.
10
The Sarita checkpoint is operated a comparable proportion of the time. "Down" periods are caused by personnel shortages, weather conditions, and at San Clemente peak traffic loads.
11
On the facts of the case, we concluded that the stop was impermissible because reasonable suspicion was lacking.
12
The defendants argue at length that the public interest in maintaining checkpoints is less than is asserted by the Government because the flow of illegal immigrants could be reduced by means other than checkpoint operations. As one alternative they suggest legislation prohibiting the knowing employment of illegal aliens. The logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers. In any event, these arguments tend to go to the general proposition that all traffic-checking procedures are impermissible, a premise our previous cases reject. The defendants do not suggest persuasively that the particular law enforcement needs served by checkpoints could be met without reliance on routine checkpoint stops. Compare United States v. Brignoni-Ponce, 422 U.S., at 883, 95 S.Ct., at 2581 (effectiveness of roving patrols not defeated by reasonable suspicion requirement), with infra, at this page.
13
The choice of checkpoint locations must be left largely to the discretion of Border Patrol officials, to be exercised in accordance with statutes and regulations that may be applicable. See n. 15, Infra. Many incidents of checkpoint operation also must be committed to the discretion of such officials. But see Infra, at 565-566.
14
Stops for questioning, not dissimilar to those involved here, are used widely at state and local levels to enforce laws regarding drivers' licenses, safety requirements, weight limits, and similar matters. The fact that the purpose of such laws is said to be administrative is of limited relevance in weighing their intrusiveness on one's right to travel; and the logic of the defendants' position, if realistically pursued, might prevent enforcement officials from stopping motorists for questioning on these matters in the absence of reasonable suspicion that a law was being violated. As such laws are not before us, we intimate no view respecting them other than to note that this practice of stopping automobiles briefly for questioning has a long history evidencing its utility and is accepted by motorists as incident to highway use.
15
As a judicial warrant authorized the Border Patrol to make routine stops at the San Clemente checkpoint, the principal question addressed by the Court of Appeals for the Ninth Circuit in No. 74-1560 was whether routine checkpoint stops were constitutional when authorized by warrant. Cf. n. 5, Supra. The Court of Appeals held alternatively that a warrant never could authorize such stops, 514 F.2d 308, 318 (1975), and that it was unreasonable to issue a warrant authorizing routine stops at the San Clemente location. Id., at 321-322. In reaching the latter conclusion, the Court of Appeals relied on (i) "the (low) frequency with which illegal aliens pass through the San Clemente checkpoint," (ii) the distance of the checkpoint from the border, and (iii) the interference with legitimate traffic. Ibid. We need not address these holdings specifically, as we conclude that no warrant is needed. But we deem the argument by the defendants in No. 74-1560 in support of the latter holding to raise the question whether, even though a warrant is not required, it is unreasonable to locate a checkpoint at San Clemente.
We answer this question in the negative. As indicated above, the choice of checkpoint locations is an administrative decision that must be left largely within the discretion of the Border Patrol, see n. 13, Supra; cf. Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967). We think the decision to locate a checkpoint at San Clemente was reasonable. The location meets the criteria prescribed by the Border Patrol to assure effectiveness, see Supra, at 553, and the evidence supports the view that the needs of law enforcement are furthered by this location. The absolute number of apprehensions at the checkpoint is high, see Supra, at 554, confirming Border Patrol judgment that significant numbers of illegal aliens regularly use Interstate 5 at this point. Also, San Clemente was selected as the location where traffic is lightest between San Diego and Los Angeles, thereby minimizing interference with legitimate traffic.
No question has been raised about the reasonableness of the location of the Sarita checkpoint.
16
The Government suggests that trained Border Patrol agents rely on factors in addition to apparent Mexican ancestry when selectively diverting motorists. Brief for United States in No. 75-5387, p. 9; see United States v. Brignoni-Ponce, 422 U.S., at 884-885, 95 S.Ct., at 2581. This assertion finds support in the record. Less than 1% of the motorists passing the checkpoint are stopped for questioning, whereas American citizens of Mexican ancestry and legally resident Mexican citizens constitute a significantly larger proportion of the population of southern California. The 1970 census figures, which may not fully reflect illegal aliens, show the population of California to be approximately 19,958,000 of whom some 3,102,000, or 16%, are Spanish-speaking or of Spanish surname. The equivalent percentages for metropolitan San Diego and Los Angeles are 13% and 18% respectively. U. S. Department of Commerce, 1970 Census of Population, vol. 1, pt. 6, Tables 48, 140. If the statewide population ratio is applied to the approximately 146,000 vehicles passing through the checkpoint during the eight days surrounding the arrests in No. 74-1560, roughly 23,400 would be expected to contain persons of Spanish or Mexican ancestry, yet only 820 were referred to the secondary area. This appears to refute any suggestion that the Border Patrol relies extensively on apparent Mexican ancestry standing alone in referring motorists to the secondary area.
17
Of the 820 vehicles referred to the secondary inspection area during the eight days surrounding the arrests involved in No. 74-1560, roughly 20% contained illegal aliens. Supra, at 554. Thus, to the extent that the Border Patrol relies on apparent Mexican ancestry at this checkpoint, see n. 16, Supra, that reliance clearly is relevant to the law enforcement need to be served. Cf. United States v. Brignoni-Ponce, supra, at 886-887, 95 S.Ct., at 2583, where we noted that "(t)he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor . . . ," although we held that apparent Mexican ancestry by itself could not create the reasonable suspicion required for a roving-patrol stop. Different considerations would arise if, for example, reliance were put on apparent Mexican ancestry at a checkpoint operated near the Canadian border.
18
There also is some support for a warrant requirement in the concurring and dissenting opinions in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), which commanded the votes of five Justices. See Id., at 283-285, 93 S.Ct., at 2544-2545 (Powell, J., concurring); Id., at 288, 93 S.Ct., at 2547 (White, J., dissenting). The burden of these opinions, however, was that an "area" warrant could serve as a substitute for the individualized probable cause to search that otherwise was necessary to sustain roving-patrol searches. As particularized suspicion is not necessary here, the warrant function discussed in Almeida-Sanchez is not an issue in these cases.
19
Mr. Justice BRENNAN's dissenting opinion reflects unwarranted concern in suggesting that today's decision marks a radical new intrusion on citizens' rights: It speaks of the "evisceration of Fourth Amendment protections," and states that the Court "virtually empties the Amendment of its reasonableness requirement." Post, at 567, 568. Since 1952, Act of June 27, 1952, 66 Stat. 233, Congress has expressly authorized persons believed to be aliens to be interrogated as to residence, and vehicles "within a reasonable distance" from the border to be searched for aliens. See n. 8, Supra. The San Clemente checkpoint has been operating at or near its present location throughout the intervening 24 years. Our prior cases have limited significantly the reach of this congressional authorization, requiring probable cause for any vehicle search in the interior and reasonable suspicion for inquiry stops by roving patrols. See Supra, at 555-556. Our holding today, approving routine stops for brief questioning (a type of stop familiar to all motorists) is confined to permanent checkpoints. We understand, of course, that neither long-standing congressional authorization nor widely prevailing practice justifies a constitutional violation. We do suggest, however, that against this background and in the context of our recent decisions, the rhetoric of the dissent reflects unjustified concern.
The dissenting opinion further warns:
"Every American citizen of Mexican ancestry and every Mexican alien lawfully in this country must know after today's decision that he travels the fixed checkpoint highways at (his) risk . . . ." Post, at 572.
For the reason stated in n. 16, Supra, this concern is misplaced. Moreover, upon a proper showing, courts would not be powerless to prevent the misuse of checkpoints to harass those of Mexican ancestry.
1
Brignoni-Ponce, which involved roving-patrol stops, said:
"(Mexican ancestry) alone would justify neither a reasonable belief that they were aliens, nor a reasonable belief that the car concealed other aliens who were illegally in the country. Large numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry, and even in the border area a relatively small proportion of them are aliens. The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens." 422 U.S., at 886-887, 95 S.Ct., at 2583 (footnote omitted).
Today we are told that secondary referrals may be based on criteria that would not sustain a roving-patrol stop, and specifically that such referrals may be based largely on Mexican ancestry. Ante, at 563. Even if the difference between Brignoni-Ponce and this decision is only a matter of degree, we are not told what justifies the different treatment of Mexican appearance or why greater emphasis is permitted in the less demanding circumstances of a checkpoint. That law in this country should tolerate use of one's ancestry as probative of possible criminal conduct is repugnant under any circumstances.
2
The Court's view that "selective referrals rather than questioning the occupants of every car tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public," Ante, at 560, stands the Fourth Amendment on its head. The starting point of this view is the unannounced assumption that intrusions are generally permissible; hence, any minimization of intrusions serves Fourth Amendment interests. Under the Fourth Amendment, however, the status quo is nonintrusion, for as a general matter, it is unreasonable to subject the average citizen or his property to search or seizure. Thus, minimization of intrusion only lessens the aggravation to Fourth Amendment interests; it certainly does not further those interests.
3
United States v. Ortiz, 442 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975), expressly recognized that such selectivity is a source of embarrassment: "Nor do checkpoint procedures significantly reduce the likelihood of embarrassment. Motorists whose cars are searched, unlike those who are only questioned, may not be reassured by seeing that the Border Patrol searches other cars as well." Id., at 895, 95 S.Ct., at 2588.
4
Though today's decision would clearly permit detentions to be based solely on Mexican ancestry, the Court takes comfort in what appears to be the Border Patrol practice of not relying on Mexican ancestry standing alone in referring motorists for secondary detentions. Ante, at 563 n. 16. See also Ante, at 566-567, n. 19. Good faith on the part of law enforcement officials, however, has never sufficed in this tribunal to substitute as a safeguard for personal freedoms or to remit our duty to effectuate constitutional guarantees. Indeed, with particular regard to the Fourth Amendment, Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), held that "simple ' "good faith on the part of the arresting officer is not enough." . . . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be "secure in their persons, houses, papers, and effects," only in the discretion of the police.' Beck v. Ohio (379 U.S. 89,) at 97, 85 S.Ct. (223), at 229 (13 L.Ed.2d 142 (1964))."
Even if good faith is assumed, the affront to the dignity of American citizens of Mexican ancestry and Mexican aliens lawfully within the country is in no way diminished. The fact still remains that people of Mexican ancestry are targeted for examination at checkpoints and that the burden of checkpoint intrusions will lie heaviest on them. That, as the Court observes, Ante, at 563 n. 16, "(l)ess than 1% of the motorists passing the checkpoint are stopped for questioning," whereas approximately 16% of the population of California is Spanish-speaking or of Spanish surname, has little bearing on this point or, for that matter, on the integrity of Border Patrol practices. There is no indication how many of the 16% have physical and grooming characteristics identifiable as Mexican. There is no indication what portion of the motoring public in California is of Spanish or Mexican ancestry. Given the socioeconomic status of this portion, it is likely that the figure is significantly less than 16%. Neither is there any indication that those of Mexican ancestry are not subjected to lengthier initial stops than others, even if they are not secondarily detained. Finally, there is no indication of the ancestral makeup of the 1% who are referred for secondary detention. If, as is quite likely the case, it is overwhelmingly Mexican, the sense of discrimination which will be felt is only enhanced.
5
As an empirical proposition, this observation is hardly self-evident. No small number of vehicles pass through a checkpoint. Indeed, better than 1,000 pass through the San Clemente checkpoint during each hour of operation. Ante, at 554. Thus there is clearly abundant opportunity for abuse and harassment at checkpoints through lengthier detention and questioning of some individuals or arbitrary secondary detentions. Such practices need not be confined to those of Mexican ancestry. And given that it is easier to deal with a vehicle which has already been slowed than it is to observe and then chase and apprehend a vehicle travelling at highway speeds, if anything, there is more, not less, room for abuse or harassment at checkpoints. Indeed, in Ortiz, the Court was "not persuaded that the checkpoint limits to any meaningful extent the officer's discretion to select cars for search." 422 U.S., at 895, 95 S.Ct., at 2588. A fortiori, discretion can be no more limited simply because the activity is detention or questioning rather than searching.
6
Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), does not support the court's result. Contrary to the Court's characterization, Ante, at 561, the searches condoned there were not "routine intrusions." The Court required that administrative searches proceed according to reasonable standards satisfied with respect to each particular dwelling searched. 387 U.S., at 538, 87 S.Ct., at 1735. The search of any dwelling at the whim of administrative personnel was not permitted. The Court, however, imposes no such standards today. Instead, any vehicle and its passengers are subject to detention at a fixed checkpoint, and "no particularized reason need exist to justify" the detention. Ante, at 563. To paraphrase an apposite observation by the Court in Almeida-Sanchez v. United States, 413 U.S. 266, 270, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973), "(checkpoints) thus embodied precisely the evil the Court saw in Camara when it insisted that the 'discretion of the official in the field' be circumscribed . . . ."
| 01
|
428 U.S. 465
96 S.Ct. 3037
49 L.Ed.2d 1067
W. T. STONE, Warden, Petitioner,v.Lloyd Charles POWELL. Charles L. WOLFF, Jr., Warden, Petitioner, v. David L. RICE.
Nos. 74-1055, 74-1222.
Argued Feb. 24, 1976.
Decided July 6, 1976.
Rehearings Denied Oct. 4, 1976.
See 429 U.S. 874, 97 S.Ct. 197.
Syllabus
Respondent in No. 74-1055, was convicted of murder in state court, in part on the basis of testimony concerning a revolver found on his person when he was arrested for violating a vagrancy ordinance. The trial court rejected respondent's contention that the testimony should have been excluded because the ordinance was unconstitutional and the arrest therefore invalid. The appellate court affirmed, finding it unnecessary to pass upon the legality of the arrest and search because of the court's conclusion that the error, if any, in admitting the challenged testimony was harmless, beyond a reasonable doubt. Respondent then applied for habeas corpus relief in the Federal District Court, which concluded that the arresting officer had probable cause and that even if the vagrancy ordinance was unconstitutional the deterrent purpose of the exclusionary rule did not require that it be applied to bar admission of the fruits of a search incident to an otherwise valid arrest. The court held, alternatively, that any error in admission of the challenged evidence was harmless. The Court of Appeals reversed, concluding that the ordinance was unconstitutional; that respondent's arrest was therefore illegal; and that, although exclusion of the evidence would serve no deterrent purpose with regard to officers who were enforcing statutes in good faith, exclusion would deter legislators from enacting unconstitutional statutes. The court also held that admission of the evidence was not harmless error. In No. 74-1222, respondent was also convicted of murder in a state court, in part on the basis of evidence seized pursuant to a search warrant which respondent on a suppression motion claimed was invalid. The trial court denied respondent's motion to suppress, and was upheld on appeal. Respondent then filed a habeas corpus petition in Federal District Court. The court concluded that the warrant was invalid, and rejected the State's contention that in any event probable cause justified the search. The Court of Appeals affirmed. Held: Where the State, as in each of these cases, has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained through an unconstitutional search and seizure was introduced at his trial. In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal as compared to the substantial societal costs of applying the rule. Pp. 474-495.
(a) Until these cases this Court has had no occasion fully to examine the validity of the assumption made in Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227, that the effectuation of the Fourth Amendment, as applied to the States through the Fourteenth, requires the granting of habeas corpus relief when a prisoner has been convicted in state court on the basis of evidence obtained in an illegal search or seizure since those Amendments were held in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, to require exclusion of such evidence at trial and reversal of conviction upon direct review. P. 480-481.
(b) The Mapp majority justified application of the exclusionary rule chiefly upon the belief that exclusion would deter future unlawful police conduct, and though preserving the integrity of the judicial process has been alluded to as also justifying the rule, that concern is minimal where federal habeas corpus relief is sought by a prisoner who has already been given the opportunity for full and fair consideration of his search-and-seizure claim at trial and on direct review. Pp. 484-486.
(c) Despite the broad deterrent purpose of the exclusionary rule, it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons; in various situations the Court has found the policies behind the rule outweighed by countervailing considerations. Pp. 486-489.
(d) The ultimate question of guilt or innocence should be the central concern in a criminal proceeding. Application of the exclusionary rule, however, deflects the truth-finding process and often frees the guilty. Though the rule is thought to deter unlawful police activity, in part through nurturing respect for Fourth Amendment values, indiscriminate application of the rule may well generate disrespect for the law and the administration of justice. Pp. 489-491.
(e) Despite the absence of supportive empirical evidence, the assumption has been that the exclusionary rule deters law enforcement officers from violating the Fourth Amendment by removing the incentives to disregard it. Though the Court adheres to that view applied to the trial and direct-appeal stages, there is no reason to believe that the effect of applying the rule would be appreciably diminished if search-and-seizure claims could not be raised in federal habeas corpus review of state convictions. Even if some additional deterrent effect existed from application of the rule in isolated habeas corpus cases, the furtherance of Fourth Amendment goals would be outweighed by the detriment to the criminal justice system. Pp. 492-494.
1
No. 74-1055, 507 F.2d 93; No. 74-1222, 513 F.2d 1280, reversed.
2
Robert R. Granucci, Deputy Atty. Gen. of Cal., Melvin Kent Kammerlohr, Asst. Atty. Gen. of Neb., for petitioners; Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Thomas A. Brady, Ronald E. Niver, Deputy Attys. Gen., Paul L. Douglas, Atty. Gen., on the briefs.
3
Robert W. Peterson, William C. Cunningham, Santa Clara, Cal., for respondents; J. Patrick Green, Omaha, Neb., on the brief.
4
Bruce E. Babbitt, Atty. Gen., Shirley H. Frondorf, Frank T. Galati, Asst. Attys. Gen., William J. Schafer, III, Phoenix, Ariz., for Ariz.; Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Chief Deputy Atty. Gen., Richard L. Chambers, Deputy Atty. Gen., G. Thomas Davis, Senior Asst. Atty. Gen., for Ga.; Theodore L. Sendak, Atty. Gen., Donald P. Bogard, Asst. Atty. Gen. of Ind., Richard C. Turner, Atty. Gen. of Iowa, for Ind. and Iowa; Vernon B. Romney, Atty. Gen., William W. Barrett, Asst. Atty. Gen., for Utah; John J. Cleary, San Diego, Cal., for Cal. Public Defenders Assn.; Mary M. Kaufman, San Bernardino, Cal., for Nat. Alliance Against Racist and Political Repression; Henry W. McGee, Jr., Los Angeles, Cal., for Nat. Conference of Black Lawyers; Jonathan M. Hyman, Newark, N. J., for Nat. Lawyers' Guild and others; Theodore A. Gottfried, Robert E. Davison, Springfield, Ill., for Nat. Legal Aid and Defender Assn.; Leon Friedman, Melvin L. Wulf, Joel M. Gora, New York City, for American Civil Liberties Union; Robert L. Shevin, Atty. Gen., Stephen R. Koons, Asst. Atty. Gen., for Fla.; William F. Hyland, Atty. Gen., David S. Baime, John DeCicco, Daniel Louis Grossman, Deputy Attys. Gen., for N. J.; Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Lillian Z. Cohen, Asst. Atty. Gen., for N. Y.; Frank Carrington, Evanston, Ill., Fred E. Inbau, Chicago, Ill., Wayne W. Schmidt, Evanston, Ill., James R. Thompson, Chicago, Ill., William K. Lambie, Evanston, Ill., for Americans for Effective Law Enforcement, Inc., and others, amici curiae.
5
[Amicus Curiae Information from pages 467-468 intentionally omitted]
6
Mr. Justice POWELL delivered the opinion of the Court.
7
Respondents in these cases were convicted of criminal offenses in state courts, and their convictions were affirmed on appeal. The prosecution in each case relied upon evidence obtained by searches and seizures alleged by respondents to have been unlawful. Each respondent subsequently sought relief in a Federal District Court by filing a petition for a writ of federal habeas corpus under 28 U.S.C. § 2254. The question presented is whether a federal court should consider, in ruling on a petition for habeas corpus relief filed by a state prisoner, a claim that evidence obtained by an unconstitutional search or seizure was introduced at his trial, when he has previously been afforded an opportunity for full and fair litigation of his claim in the state courts. The issue is of considerable importance to the administration of criminal justice.
8
* We summarize first the relevant facts and procedural history of these cases.
A.
9
Respondent Lloyd Powell was convicted of murder in June 1968 after trial in a California state court. At about midnight on February 17, 1968, he and three companions entered the Bonanza Liquor Store in San Bernardino, Cal., where Powell became involved in an altercation with Gerald Parsons, the store manager, over the theft of a bottle of wine. In the scuffling that followed Powell shot and killed Parsons' wife. Ten hours later an officer of the Henderson, Nev., Police Department arrested Powell for violation of the Henderson vagrancy ordinance,1 and in the search incident to the arrest discovered a .38-caliber revolver with six expended cartridges in the cylinder.
10
Powell was extradited to California and convicted of second-degree murder in the Superior Court of San Bernardo County. Parsons and Powell's accomplices at the liquor store testified against him. A criminologist testified that the revolver found on Powell was the gun that killed Parsons' wife. The trial court rejected Powell's contention that testimony by the Henderson police officer as to the search and the discovery of the revolver should have been excluded because the vagrancy ordinance was unconstitutional. In October 1969, the conviction was affirmed by a California District Court of Appeal. Although the issue was duly presented, that court found it unnecessary to pass upon the legality of the arrest and search because it concluded that the error, if any, in admitting the testimony of the Henderson officer was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Supreme Court of California denied Powell's petition for habeas corpus relief.
11
In August 1971 Powell filed an amended petition for a writ of federal habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Northern District of California, contending that the testimony concerning the .38-caliber revolver should have been excluded as the fruit of an illegal search. He argued that his arrest had been unlawful because the Henderson vagrancy ordinance was unconstitutionally vague, and that the arresting officer lacked probable cause to believe that he was violating it. The District Court concluded that the arresting officer had probable cause and held that even if the vagrancy ordinance was unconstitutional, the deterrent purpose of the exclusionary rule does not require that it be applied to bar admission of the fruits of a search incident to an otherwise valid arrest. In the alternative, that court agreed with the California District Court of Appeal that the admission of the evidence concerning Powell's arrest, if error, was harmless beyond a reasonable doubt.
12
In December 1974, the Court of Appeals for the Ninth Circuit reversed. 507 F.2d 93. The court concluded that the vagrancy ordinance was unconstitutionally vague,2 that Powell's arrest was therefore illegal, and that although exclusion of the evidence would serve no deterrent purpose with regard to police officers who were enforcing statutes in good faith, exclusion would serve the public interest by deterring legislators from enacting unconstitutional statutes. Id., at 98. After an independent review of the evidence the court concluded that the admission of the evidence was not harmless error since it supported the testimony of Parsons and Powell's accomplices. Id., at 99.
B
13
Respondent David Rice was convicted of murder in April 1971 after trial in a Nebraska state court. At 2:05 a. m. on August 17, 1970, Omaha police received a telephone call that a woman had been heard screaming at 2867 Ohio Street. As one of the officers sent to that address examined a suitcase lying in the doorway, it exploded, killing him instantly. By August 22 the investigation of the murder centered on Duane Peak, a 15-year-old member of the National Committee to Combat Fascism (NCCF), and that afternoon a warrant was issued for Peak's arrest. The investigation also focused on other known members of the NCCF, including Rice, some of whom were believed to be planning to kill Peak before he could incriminate them. In their search for Peak, the police went to Rice's home at 10:30 that night and found lights and a television on, but there was no response to their repeated knocking. While some officers remained to watch the premises, a warrant was obtained to search for explosives and illegal weapons believed to be in Rice's possession. Peak was not in the house, but upon entering the police discovered, in plain view, dynamite, blasting caps, and other materials useful in the construction of explosive devices. Peak subsequently was arrested, and on August 27, Rice voluntarily surrendered. The clothes Rice was wearing at that time were subjected to chemical analysis, disclosing dynamite particles.
14
Rice was tried for first-degree murder in the District Court of Douglas County. At trial Peak admitted planting the suitcase and making the telephone call, and implicated Rice in the bombing plot. As corroborative evidence the State introduced items seized during the search, as well as the results of the chemical analysis of Rice's clothing. The court denied Rice's motion to suppress this evidence. On appeal the Supreme Court of Nebraska affirmed the conviction, holding that the search of Rice's home had been pursuant to a valid search warrant. State v. Rice, 188 Neb. 728, 199 N.W.2d 480 (1972).
15
In September 1972 Rice filed a petition for a writ of habeas corpus in the United States District Court for Nebraska. Rice's sole contention was that his incarceration was unlawful because the evidence underlying his conviction had been discovered as the result of an illegal search of his home. The District Court concluded that the search warrant was invalid, as the supporting affidavit was defective under Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). 388 F.Supp. 185, 190-194 (1974).3 The court also rejected the State's contention that even if the warrant was invalid the search was justified because of the valid arrest warrant for Peak and because of the exigent circumstances of the situation danger to Peak and search for bombs and explosives believed in possession of the NCCF. The court reasoned that the arrest warrant did not justify the entry as the police lacked probable cause to believe Peak was in the house, and further concluded that the circumstances were not sufficiently exigent to justify an immediate warrantless search. Id., at 194-202.4 The Court of Appeals for the Eighth Circuit affirmed, substantially for the reasons stated by the District Court. 513 F.2d 1280 (1975).
16
Petitioners Stone and Wolff, the wardens of the respective state prisons where Powell and Rice are incarcerated, petitioned for review of these decisions, raising questions concerning the scope of federal habeas corpus and the role of the exclusionary rule upon collateral review of cases involving Fourth Amendment claims. We granted their petitions for certiorari. 422 U.S. 1055, 95 S.Ct. 2676, 2677, 45 L.Ed.2d 707 (1975).5 We now reverse.
II
17
The authority of federal courts to issue the writ of habeas corpus ad subjiciendum6 was included in the first grant of federal-court jurisdiction, made by the Judiciary Act of 1789, c. 20, § 14, 1 Stat. 81, with the limitation that the writ extend only to prisoners held in custody by the United States. The original statutory authorization did not define the substantive reach of the writ. It merely stated that the courts of the United States "shall have power to issue writs of . . . Habeas corpus . . .. " Ibid. The courts defined the scope of the writ in accordance with the common law and limited it to an inquiry as to the jurisdiction of the sentencing tribunal. See, e. g., Ex parte Watkins, 3 Pet. 193, 7 L.Ed. 650 (1830) (Marshall, C. J.).
18
In 1867 the writ was extended to state prisoners. Act of Feb. 5, 1867, c. 28, § 1, 14 Stat. 385. Under the 1867 Act federal courts were authorized to give relief 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 . . .." But the limitation of federal habeas corpus jurisdiction to consideration of the jurisdiction of the sentencing court persisted. See, E. g., In re Wood, 140 U.S. 278, 11 S.Ct. 738, 35 L.Ed. 505 (1891); In re Rahrer, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572 (1891); Andrews v. Swartz, 156 U.S. 272, 15 S.Ct. 389, 39 L.Ed. 422 (1895); Bergemann v. Backer, 157 U.S. 655, 15 S.Ct. 727, 39 L.Ed. 845 (1895); Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148 (1906). And, although the concept of "jurisdiction" was subjected to considerable strain as the substantive scope of the writ was expanded,7 this expansion was limited to only a few classes of cases8 until Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 in 1915. In Frank, the prisoner had claimed in the state courts that the proceedings which resulted in his conviction for murder had been dominated by a mob. After the State Supreme Court rejected his contentions, Frank unsuccessfully sought habeas corpus relief in the Federal District Court. This Court affirmed the denial of relief because Frank's federal claims had been considered by a competent and unbiased state tribunal. The Court recognized, however, that if a habeas corpus court found that the State had failed to provide adequate "corrective process" for the full and fair litigation of federal claims, whether or not "jurisdictional," the court could inquire into the merits to determine whether a detention was lawful. Id., at 333-336, 35 S.Ct., at 589-90.
19
In the landmark decision in Brown v. Allen, 344 U.S. 443, 482-487, 73 S.Ct. 397, 420-423, 97 L.Ed. 469 (1953), the scope of the writ was expanded still further.9 In that case and its companion case, Daniels v. Allen, prisoners applied for federal habeas corpus relief claiming that the trial courts had erred in failing to quash their indictments due to alleged discrimination in the selection of grand jurors and in ruling certain confessions admissible. In Brown, the highest court of the State had rejected these claims on direct appeal, State v. Brown, 233 N.C. 202, 63 S.E.2d 99, and this Court had denied certiorari, 341 U.S. 943, 71 S.Ct. 997, 95 L.Ed. 1369 (1951). Despite the apparent adequacy of the state corrective process, the Court reviewed the denial of the writ of habeas corpus and held that Brown was entitled to a full reconsideration of these constitutional claims, including, if appropriate, a hearing in the Federal District Court. In Daniels, however, the State Supreme Court on direct review had refused to consider the appeal because the papers were filed out of time. This Court held that since the state-court judgment rested on a reasonable application of the State's legitimate procedural rules, a ground that would have barred direct review of his federal claims by this Court, the District Court lacked authority to grant habeas corpus relief. See 344 U.S, at 458, 486, 73 S.Ct. at 407, 422.
20
This final barrier to broad collateral re-examination of state criminal convictions in federal habeas corpus proceedings was removed in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).10 Noia and two codefendants had been convicted of felony murder. The sole evidence against each defendant was a signed confession. Noia's codefendants, but not Noia himself, appealed their convictions. Although their appeals were unsuccessful, in subsequent state proceedings they were able to establish that their confessions had been coerced and their convictions therefore procured in violation of the Constitution. In a subsequent federal habeas corpus proceeding, it was stipulated that Noia's confession also had been coerced, but the District Court followed Daniels in holding that Noia's failure to appeal barred habeas corpus review. See United States v. Fay, 183 F.Supp. 222, 225 (SDNY1960). The Court of Appeals reversed, ordering that Noia's conviction be set aside and that he be released from custody or that a new trial be granted. This Court affirmed the grant of the writ, narrowly restricting the circumstances in which a federal court may refuse to consider the merits of federal constitutional claims.11
21
During the period in which the substantive scope of the writ was expanded, the Court did not consider whether exceptions to full review might exist with respect to particular categories of constitutional claims. Prior to the Court's decision in Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), however, a substantial majority of the Federal Courts of Appeals had concluded that collateral review of search-and-seizure claims was inappropriate on motions filed by federal prisoners under 28 U.S.C. § 2255, the modern post conviction procedure available to federal prisoners in lieu of habeas corpus.12 The primary rationale advanced in support of those decisions was that Fourth Amendment violations are different in kind from denials of Fifth or Sixth Amendment rights in that claims of illegal search and seizure do not "impugn the integrity of the fact-finding process or challenge evidence as inherently unreliable; rather, the exclusion of illegally seized evidence is simply a prophylactic device intended generally to deter Fourth Amendment violations by law enforcement officers." 394 U.S., at 224, 89 S.Ct., at 1073. See Thornton v. United States, 125 U.S.App.D.C. 114, 368 F.2d 822 (1966).
22
Kaufman Rejected this rationale and held that search-and-seizure claims are cognizable in § 2255 proceedings. The Court noted that "the federal habeas remedy extends to state prisoners alleging that unconstitutionally obtained evidence was admitted against them at trial," 394 U.S., at 225, 89 S.Ct. at 1073, citing, e. g., Mancusi v. DeForte, 392 U.S364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), and concluded, as a matter of statutory construction, that there was no basis for restricting "access by federal prisoners with illegal search-and-seizure claims to federal collateral remedies, while placing no similar restriction on access by state prisoners," 394 U.S., at 226, 89 S.Ct. at 1074. Although in recent years the view has been expressed that the Court should re-examine the substantive scope of federal habeas jurisdiction and limit collateral review of search-and-seizure claims "solely to the question of whether the petitioner was provided a fair opportunity to raise and have adjudicated the question in state courts," Schneckloth v. Bustamonte, 412 U.S. 218, 250, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973) (Powell, J., concurring),13 the Court, without discussion or consideration of the issue, has continued to accept jurisdiction in cases raising such claims. See Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plurality opinion).14
23
The discussion in Kaufman Of the scope of federal habeas corpus rests on the view that the effectuation of the Fourth Amendment, as applied to the States through the Fourteenth Amendment, requires the granting of habeas corpus relief when a prisoner has been convicted in state court on the basis of evidence obtained in an illegal search or seizure since those Amendments were held in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), to require exclusion of such evidence at trial and reversal of conviction upon direct review.15 Until these cases we have not had occasion fully to consider the validity of this view. See, e. g., Schneckloth v. Bustamonte, supra, 412 U.S. at 249 n. 38, 93 S.Ct. at 2059; Cardwell v. Lewis, supra, 417 U.S. at 596, and n. 12, 94 S.Ct. at 2472. Upon examination, we conclude, in light of the nature and purpose of the Fourth Amendment exclusionary rule, that this view is unjustified.16 We hold, therefore, that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.17
III
24
The Fourth Amendment assures the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Amendment was primarily a reaction to the evils associated with the use of the general warrant in England and the writs of assistance in the Colonies, Stanford v. Texas, 379 U.S. 476, 481-485, 85 S.Ct. 506, 509-511, 13 L.Ed.2d 431 (1965); Frank v. Maryland, 359 U.S. 360, 363-365, 79 S.Ct. 804, 807-808, 3 L.Ed.2d 877 (1959), and was intended to protect the "sanctity of a man's home and the privacies of life," Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886), from searches under unchecked general authority.18
25
The exclusionary rule was a judicially created means of effectuating the rights secured by the Fourth Amendment. Prior to the Court's decisions in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921), there existed no barrier to the introduction in criminal trials of evidence obtained in violation of the Amendment. See Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575 (1904).19 In Weeks The Court held that the defendant could petition before trial for the return of property secured through an illegal search or seizure conducted by federal authorities. In Gouled The Court held broadly that such evidence could not be introduced in a federal prosecution. See Warden v. Hayden, 387 U.S. 294, 304-305, 87 S.Ct. 1642, 1648-1649, 18 L.Ed.2d 782 (1967). See also Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920) (fruits of illegally seized evidence). Thirty-five years after Weeks The Court held in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), that the right to be free from arbitrary intrusion by the police that is protected by the Fourth Amendment is "implicit in 'the concept of ordered liberty' and as such enforceable against the States through the (Fourteenth Amendment) Due Process Clause." Id., At 27-28, 69 S.Ct. at 1361. The Court concluded, however, that the Weeks Exclusionary rule would not be imposed upon the States as "an essential ingredient of (that) right." 338 U.S., at 29, 69 S.Ct. at 1362. The full force of Wolf Was eroded in subsequent decisions, see Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233 (1956), and a little more than a decade later the exclusionary rule was held applicable to the States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
26
Decisions prior to Mapp Advanced two principal reasons for application of the rule in federal trials. The Court in Elkins, for example, in the context of its special supervisory role over the lower federal courts, referred to the "imperative of judicial integrity," suggesting that exclusion of illegally seized evidence prevents contamination of the judicial process. 364 U.S., at 222, 80 S.Ct. at 1446.20 But even in that context a more pragmatic ground was emphasized:
27
"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." Id., At 217, 80 S.Ct. at 1444.
28
The Mapp Majority justified the application of the rule to the States on several grounds,21 but relied principally upon the belief that exclusion would deter future unlawful police conduct. 367 U.S., at 658, 81 S.Ct. at 1693.
29
Although our decisions often have alluded to the "imperative of judicial integrity," e. g., United States v. Peltier, 422 U.S. 531, 536-539, 95 S.Ct. 2313, 2317-2318, 45 L.Ed.2d 374 (1975), they demonstrate the limited role of this justification in the determination whether to apply the rule in a particular context.22 Logically extended this justification would require that courts exclude unconstitutionally seized evidence despite lack of objection by the defendant, or even over his assent. Cf. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). It also would require abandonment of the standing limitations on who may object to the introduction of unconstitutionally seized evidence, Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), and retreat from the proposition that judicial proceedings need not abate when the defendant's person is unconstitutionally seized, Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952). Similarly, the interest in promoting judicial integrity does not prevent the use of illegally seized evidence in grand jury proceedings. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Nor does it require that the trial court exclude such evidence from use for impeachment of a defendant, even though its introduction is certain to result in conviction in some cases. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). The teaching of these cases is clear. While courts, of course, must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion of highly probative evidence.23 The force of this justification becomes minimal where federal habeas corpus relief is sought by a prisoner who previously has been afforded the opportunity for full and fair consideration of his search-and-seizure claim at trial and on direct review.
30
The primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights. Post-Mapp Decisions have established that the rule is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search or seizure, for any "(r)eparation comes too late." Linkletter v. Walker, 381 U.S. 618, 637, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601 (1965). Instead,
31
"the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect . . . ." United States v. Calandra, supra, 414 U.S. at 348, 94 S.Ct. at 620.
32
Accord, United States v. Peltier, supra, 422 U.S. at 538-539, 95 S.Ct. at 2318; Terry v. Ohio, 392 U.S. 1, 28-29, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968); Linkletter v. Walker, supra, 381 U.S., at 636-637, 85 S.Ct. at 1741; Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453 (1966).
33
Mapp Involved the enforcement of the exclusionary rule at state trials and on direct review. The decision in Kaufman, As noted above, is premised on the view that implementation of the Fourth Amendment also requires the consideration of search-and-seizure claims upon collateral review of state convictions. But despite the broad deterrent purpose of the exclusionary rule, it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons. As in the case of any remedial device, "the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, supra, 414 U.S. at 348, 94 S.Ct. at 620.24 Thus, our refusal to extend the exclusionary rule to grant jury proceedings was based on a balancing of the potential injury to the historic role and function of the grand jury by such extension against the potential contribution to the effectuation of the Fourth Amendment through deterrence of police misconduct:
34
"Any incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best. Whatever deterrence of police misconduct may result from the exclusion of illegally seized evidence from criminal trials, it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal. Such an extension would deter only police investigation consciously directed toward the discovery of evidence solely for use in a grand jury investigation. . . . . We therefore decline to embrace a view that would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially impeding the role of the grand jury." 414 U.S., at 351-352, 94 S.Ct., at 621 (footnote omitted).
35
The same pragmatic analysis of the exclusionary rule's usefulness in a particular context was evident earlier in Walder v. United States, supra, where the Court permitted the Government to use unlawfully seized evidence to impeach the credibility of a defendant who had testified broadly in his own defense. The Court held, in effect, that the interests safeguarded by the exclusionary rule in that context were outweighed by the need to prevent perjury and to assure the integrity of the trial process. The judgment in Walder revealed most clearly that the policies behind the exclusionary rule are not absolute. Rather, they must be evaluated in light of competing policies. In that case, the public interest in determination of truth at trial25 was deemed to outweigh the incremental contribution that might have been made to the protection of Fourth Amendment values by application of the rule.
36
The balancing process at work in these cases also finds expression in the standing requirement. Standing to invoke the exclusionary rule has been found to exist only when the Government attempts to use illegally obtained evidence to incriminate the victim of the illegal search. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Wong Sun v. United States, 371 U.S. 471, 491-492, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963). See Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960). The standing requirement is premised on the view that the "additional benefits of extending the . . . rule" to defendants other than the victim of the search or seizure are outweighed by the "further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth." Alderman v. United States, supra, 394 U.S. at 174-175, 89 S.Ct. at 967.26
IV
37
We turn now to the specific question presented by these cases. Respondents allege violations of Fourth Amendment rights guaranteed them through the Fourteenth Amendment. The question is whether state prisoners who have been afforded the opportunity for full and fair consideration of their reliance upon the exclusionary rule with respect to seized evidence by the state courts at trial and on direct review may invoke their claim again on federal habeas corpus review. The answer is to be found by weighing the utility of the exclusionary rule against the costs of extending it to collateral review of Fourth Amendment claims.
38
The costs of applying the exclusionary rule even at trial and on direct review are well known:27 the focus of the trial, and the attention of the participants therein, are diverted from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding.28 Moreover, the physical evidence sought to be excluded is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant. As Mr. Justice Black emphasized in his dissent in Kaufman:
39
"A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional rights; ordinarily the evidence seized can in no way have been rendered untrustworthy by the means of its seizure and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty." 394 U.S., at 237, 89 S.Ct., at 1079.
40
Application of the rule thus deflects the truthfinding process and often frees the guilty. The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice.29 Thus, although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice.30 These long-recognized costs of the rule persist when a criminal conviction is sought to be overturned on collateral review on the ground that a search-and-seizure claim was erroneously rejected by two or more tiers of state courts.31
41
Evidence obtained by police officers in violation of the Fourth Amendment is excluded at trial in the hope that the frequency of future violations will decrease. Despite the absence of supportive empirical evidence,32 we have assumed that the immediate effect of exclusion will be to discourage law enforcement officials from violating the Fourth Amendment by removing the incentive to disregard it. More importantly, over the long term, this demonstration that our society attaches serious consequences to violation of constitutional rights is thought to encourage those who formulate law enforcement policies, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system.33
42
We adhere to the view that these considerations support the implementation of the exclusionary rule at trial and its enforcement on direct appeal of state-court convictions. But the additional contribution, if any, of the consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the costs. To be sure, each case in which such claim is considered may add marginally to an awareness of the values protected by the Fourth Amendment. There is no reason to believe, however, that the overall educative effect of the exclusionary rule would be appreciably diminished if search-and-seizure claims could not be raised in federal habeas corpus review of state convictions.34 Nor is there reason to assume that any specific disincentive already created by the risk of exclusion of evidence at trial or the reversal of convictions on direct review would be enhanced if there were the further risk that a conviction obtained in state court and affirmed on direct review might be overturned in collateral proceedings often occurring years after the incarceration of the defendant. The view that the deterrence of Fourth Amendment violations would be furthered rests on the dubious assumption that law enforcement authorities would fear that federal habeas review might reveal flaws in a search or seizure that went undetected at trial and on appeal.35 Even if one rationally could assume that some additional incremental deterrent effect would be presented in isolated cases, the resulting advance of the legitimate goal of furthering Fourth Amendment rights would be outweighed by the acknowledged costs to other values vital to a rational system of criminal justice.
43
In sum, we conclude that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim,36 a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.37 In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force.38
44
Accordingly, the judgments of the Courts of Appeals are
45
Reversed.
46
Mr. Chief Justice BURGER, concurring.
47
I concur in the Court's opinion. By way of dictum, and somewhat hesitantly, the Court notes that the holding in this case leaves undisturbed the exclusionary rule as applied to criminal trials. For reasons stated in my dissent in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 91 S.Ct. 1999, 2012, 29 L.Ed.2d 619 (1971), it seems clear to me that the exclusionary rule has been operative long enough to demonstrate its flaws. The time has come to modify its reach, even if it is retained for a small and limited category of cases.
48
Over the years, the strains imposed by reality, in terms of the costs to society and the bizarre miscarriages of justice that have been experienced because of the exclusion of reliable evidence when the "constable blunders," have led the Court to vacillate as to the rationale for deliberate exclusion of truth from the factfinding process. The rhetoric has varied with the rationale to the point where the rule has become a doctrinaire result in search of validating reasons.
49
In evaluating the exclusionary rule, it is important to bear in mind exactly what the rule accomplishes. Its function is simple the exclusion of truth from the factfinding process. Cf. M. Frankel, The Search for Truth An Umpireal View, 31st Annual Benjamin N. Cardozo Lecture, Association of the Bar of the City of New York, Dec. 16, 1974. The operation of the rule is therefore unlike that of the Fifth Amendment's protection against compelled self-incrimination. A confession produced after intimidating or coercive interrogation is inherently dubious. If a suspect's will has been overborne, a cloud hangs over his custodial admissions; the exclusion of such statements is based essentially on their lack of reliability. This is not the case as to reliable evidence a pistol, a packet of heroin, counterfeit money, or the body of a murder victim which may be judicially declared to be the result of an "unreasonable" search. The reliability of such evidence is beyond question; its probative value is certain.
50
This remarkable situation one unknown to the common-law tradition had its genesis in a case calling for the protection of private papers against governmental intrusions. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed.2d 746 (1886). See also Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). In Boyd, the Court held that private papers were inadmissible because of the Government's violation of the Fourth and Fifth Amendments. In Weeks, the Court excluded private letters seized from the accused's home by a federal official acting without a warrant. In both cases, the Court had a clear vision of what it was seeking to protect. What the Court said in Boyd shows how far we have strayed from the original path:
51
"The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, Are totally different things from a search for and seizure of a man's private books and papers For the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ Toto coelo." 116 U.S., at 623, 6 S.Ct., at 528. (Emphasis added.)
52
In Weeks, the Court emphasized that the Government, under settled principles of common law, had no right to keep a person's Private papers. The Court noted that the case did not involve "burglar's tools or other Proofs of guilt . . . ." 232 U.S., at 392, 34 S.Ct. 344 (Emphasis added.)
53
From this origin, the exclusionary rule has been changed in focus entirely. It is now used almost exclusively to exclude from evidence articles which are unlawful to be possessed or tools and instruments of crime. Unless it can be rationally thought that the Framers considered it essential to protect the liberties of the people to hold that which it is unlawful to possess, then it becomes clear that our constitutional course has taken a most bizarre tack.
54
The drastically changed nature of judicial concern from the protection of personal papers or effects in one's private quarters, to the exclusion of that which the accused had no right to possess is only one of the more recent anomalies of the rule. The original incongruity was the rule's inconsistency with the general proposition that "our legal system does not attempt to do justice incidentally and to enforce penalties by indirect means." 8 J. Wigmore, Evidence § 2181, p. 6 (McNaughten ed. 1961). The rule is based on the hope that events in the courtroom or appellate chambers, long after the crucial acts took place, will somehow modify the way in which policemen conduct themselves. A more clumsy, less direct means of imposing sanctions is difficult to imagine, particularly since the issue whether the policeman did indeed run afoul of the Fourth Amendment is often not resolved until years after the event. The "sanction" is particularly indirect when, as in No. 74-1222, the police go before a magistrate, who issues a warrant. Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law. Imposing an admittedly indirect "sanction" on the police officer in that instance is nothing less than sophisticated nonsense.
55
Despite this anomaly, the exclusionary rule now rests upon its purported tendency to deter police misconduct, United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976); United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974), although, as we know, the rule has long been applied to wholly good-faith mistakes and to purely technical deficiencies in warrants. Other rhetorical generalizations, including the "imperative of judicial integrity," have not withstood analysis as more and more critical appraisals of the rule's operation have appeared. See e. g., Oakes, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665 (1970). Indeed, settled rules demonstrate that the "judicial integrity" rationalization is fatally flawed. First, the Court has refused to entertain claims that evidence was unlawfully seized unless the claimant could demonstrate that he had standing to press the contention. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). If he could not, the evidence, albeit secured in violation of the Fourth Amendment, is admissible. Second, as one scholar has correctly observed:
56
"(I)t is difficult to accept the proposition that the exclusion of improperly obtained evidence is necessary for 'judicial integrity' when no such rule is observed in other common law jurisdictions such as England and Canada, whose courts are otherwise regarded as models of judicial decorum and fairness." Oaks, Supra, at 669.
57
Despite its avowed deterrent objective, proof is lacking that the exclusionary rule, a purely judge-created device based on "hard cases," serves the purpose of deterrence. Notwithstanding Herculean efforts, no empirical study has been able to demonstrate that the rule does in fact have any deterrent effect. In the face of dwindling support for the rule some would go so far as to extend it to Civil cases. United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046.
58
To vindicate the continued existence of this judge-made rule, it is incumbent upon those who seek its retention and surely its Extension to demonstrate that it serves its declared deterrent purpose and to show that the results outweigh the rule's heavy costs to rational enforcement of the criminal law. See, e. g., Killough v. United States, 114 U.S.App.D.C. 305, 315 F.2d 241 (1962). The burden rightly rests upon those who ask society to ignore trustworthy evidence of guilt, at the expense of setting obviously guilty criminals free to ply their trade.
59
In my view, it is an abdication of judicial responsibility to exact such exorbitant costs from society purely on the basis of speculative and unsubstantiated assumptions. Judge Henry Friendly has observed:
60
"(T)he same authority that empowered the Court to supplement the (fourth) amendment by the exclusionary rule a hundred and twenty-five years after its adoption, likewise allows it to modify that rule as the 'lessons of experience' may teach." The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929, 952-953 (1965).
61
In Bivens, I suggested that, despite its grave shortcomings, the rule need not be totally abandoned until some meaningful alternative could be developed to protect innocent persons aggrieved by police misconduct. With the passage of time, it now appears that the continued existence of the rule, as presently implemented, inhibits the development of rational alternatives. The reason is quite simple: Incentives for developing new procedures or remedies will remain minimal or nonexistent so long as the exclusionary rule is retained in its present form.
62
It can no longer be assumed that other branches of government will act while judges cling to this Draconian, discredited device in its present absolutist form. Legislatures are unlikely to create statutory alternatives, or impose direct sanctions on errant police officers or on the public treasury by way of tort actions so long as persons who commit serious crimes continue to reap the enormous and undeserved benefits of the exclusionary rule. And of course, by definition the direct beneficiaries of this rule can be none but persons guilty of crimes. With this extraordinary "remedy" for Fourth Amendment violations, however slight, inadvertent, or technical, legislatures might assume that nothing more should be done, even though a grave defect of the exclusionary rule is that it offers no relief whatever to victims of overzealous police work who never appear in court. Schaefer, The Fourteenth Amendment and Sanctity of the Person, 64 Nw.U.L.Rev. 1, 14 (1969). And even if legislatures were inclined to experiment with alternative remedies, they have no assurance that the judicially created rule will be abolished or even modified in response to such legislative innovations. The unhappy result, as I see it, is that alternatives will inevitably be stymied by rigid adherence on our part to the exclusionary rule. I venture to predict that overruling this judicially contrived doctrine or limiting its scope to egregious, bad-faith conduct would inspire a surge of activity toward providing some kind of statutory remedy for persons injured by police mistakes or misconduct.
63
The Court's opinion today eloquently reflects something of the dismal social costs occasioned by the rule. Ante, at 489-491. As Mr. Justice WHITE correctly observes today in his dissent, the exclusionary rule constitutes a "senseless obstacle to arriving at the truth in many criminal trials." Post, at 538. He also suggests that the rule be substantially modified "so as to prevent its application in those many circumstances where the evidence at issue was seized by an officer acting in the good-faith belief that his conduct comported with existing law and having reasonable grounds for this belief." Ibid.
64
From its genesis in the desire to protect private papers, the exclusionary rule has now been carried to the point of potentially excluding from evidence the traditional Corpus delicti in a murder or kidnaping case. See People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607, cert. denied, 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191 (1976). Cf. Killough v. United States, supra. Expansion of the reach of the exclusionary rule has brought Cardozo's grim prophecy in People v. Defore, 242 N.Y. 13, 24, 150 N.E. 585, 588 (1926), nearer to fulfillment:
65
"A room is searched against the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed, and the murderer goes free. . . . We may not subject society to these dangers until the Legislature has spoken with a clearer voice."
66
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL concurs, dissenting.
67
The Court today holds "that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Ante, at 494. To be sure, my Brethren are hostile to the continued vitality of the exclusionary rule as part and parcel of the Fourth Amendment's prohibition of unreasonable searches and seizures, as today's decision in United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046, confirms. But these cases, despite the veil of Fourth Amendment terminology employed by the Court, plainly do not involve any question of the right of a defendant to have evidence excluded from use against him in his criminal trial when that evidence was seized in contravention of rights ostensibly secured1 by the Fourth and Fourteenth Amendments. Rather, they involve the question of the availability of a Federal forum for vindicating those federally guaranteed rights. Today's holding portends substantial evisceration of federal habeas corpus jurisdiction, and I dissent.
68
The Court's opinion does not specify the particular basis on which it denies federal habeas jurisdiction over claims of Fourth Amendment violations brought by state prisoners. The Court insists that its holding is based on the Constitution, see e. g., ante, at 482, but in light of the explicit language of 28 U.S.C. § 22542 (significantly not even mentioned by the Court), I can only presume that the Court intends to be understood to hold either that respondents are not, as a matter of statutory construction, "in custody in violation of the Constitution or laws . . . of the United States," or that " 'considerations of comity and concern)for the orderly administration of criminal justice,' " Ante, at 478 n. 11,3 are sufficient to allow this Court to rewrite jurisdictional statutes enacted by Congress. Neither ground of decision is tenable; the former is simply illogical, and the latter is an arrogation of power committed solely to the Congress.
69
* Much of the Court's analysis implies that respondents are not entitled to habeas relief because they are not being unconstitutionally detained. Although purportedly adhering to the principle that the Fourth and Fourteenth Amendments "require exclusion" of evidence seized in violation of their commands, Ante, at 481, the Court informs us that there has merely been a "view" in our cases that "the effectuation of the Fourth Amendment . . . requires the granting of habeas corpus relief when a prisoner has been convicted in state court on the basis of evidence obtained in an illegal search or seizure . . . ." Ante, at 480-481.4 Applying a "balancing test," see, e. g., ante, at 487-489, 489-490, 493-494, the Court then concludes that this "view" is unjustified and that the policies of the Fourth Amendment would not be implemented if claims to the benefits of the exclusionary rule were cognizable in collateral attacks on state-court convictions.5
70
Understandably the Court must purport to cast its holding in constitutional terms, because that avoids a direct confrontation with the incontrovertible facts that the habeas statutes have heretofore always been construed to grant jurisdiction to entertain Fourth Amendment claims of both state and federal prisoners, that Fourth Amendment principles have been applied in decisions on the merits in numerous cases on collateral review of final convictions, and that Congress has legislatively accepted our interpretation of congressional intent as to the necessary scope and function of habeas relief. Indeed, the Court reaches its result without explicitly overruling any of our plethora of precedents inconsistent with that result or even discussing principles of stare decisis. Rather, the Court asserts, in essence, that the Justices joining those prior decisions or reaching the merits of Fourth Amendment claims simply overlooked the obvious constitutional dimension to the problem in adhering to the "view" that granting collateral relief when state courts erroneously decide Fourth Amendment issues would effectuate the principles underlying that Amendment.6 But, shorn of the rhetoric of "interest balancing" used to obscure what is at stake in this case, it is evident that today's attempt to rest the decision on the Constitution must fail so long as Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), remains undisturbed.
71
Under Mapp, as a matter of federal constitutional law, a state court Must exclude evidence from the trial of an individual whose Fourth and Fourteenth Amendment rights were violated by a search or seizure that directly or indirectly resulted in the acquisition of that evidence. As United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974), reaffirmed, "evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure."7 When a state court admits such evidence, it has committed a Constitutional error, and unless that error is harmless under federal standards, see, e. g., Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), it follows ineluctably that the defendant has been placed "in custody in violation of the Constitution" within the comprehension of 28 U.S.C. § 2254. In short, it escapes me as to what logic can support the assertion that the defendant's unconstitutional confinement obtains during the process of direct review, no matter how long that process takes,8 but that the unconstitutionality then suddenly dissipates at the moment the claim is asserted in a collateral attack on the conviction.
72
The only conceivable rationale upon which the Court's "constitutional" thesis might rest is the statement that "the (exclusionary) rule is not a personal constitutional right. . . . Instead, 'the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.' " Ante, at 486, quoting United States v. Calandra, supra, 414 U.S., at 348, 94 S.Ct. at 620. Although my dissent in Calandra rejected, in light of contrary decisions establishing the role of the exclusionary rule, the premise that an individual has no constitutional right to have unconstitutionally seized evidence excluded from all use by the government, I need not dispute that point here.9 For today's holding is not logically defensible even under Calandra. However, the Court reinterprets Mapp, and whatever the rationale now attributed to Mapp's holding or the purpose ascribed to the exclusionary rule, the prevailing constitutional Rule is that unconstitutionally seized evidence Cannot be admitted in the criminal trial of a person whose federal constitutional rights were violated by the search or seizure. The erroneous admission of such evidence is a violation of the Federal Constitution—Mapp inexorably means at least this much, or there would be no basis for applying the exclusionary rule in state criminal proceedings—and an accused against whom such evidence is admitted has been convicted in derogation of rights mandated by, and is "in custody in violation ," the Constitution of the United States. Indeed, since state courts violate the strictures of the Federal Constitution by admitting such evidence, then even if federal habeas review did not directly effectuate Fourth Amendment values, a proposition I deny, that review would nevertheless serve to effectuate what is concededly a constitutional principle concerning admissibility of evidence at trial.
73
The Court, assuming without deciding that respondents were convicted on the basis of unconstitutionally obtained evidence erroneously admitted against them by the state trial courts, acknowledges that respondents had the right to obtain a reversal of their convictions on appeal in the state courts or on certiorari to this Court. Indeed, since our rules relating to the time limits for applying for certiorari in criminal cases are nonjurisdictional, certiorari could be granted respondents even today and their convictions could be reversed despite today's decisions. See also Infra, at 533-534. And the basis for reversing those convictions would of course have to be that the States, in rejecting respondents' Fourth Amendment claims, had deprived them of a right in derogation of the Federal Constitution. It is simply inconceivable that that constitutional deprivation suddenly vanishes after the appellate process has been exhausted. And as between this Court on certiorari, and federal district courts on habeas, it is for Congress to decide what the most efficacious method is for enforcing Federal constitutional rights and asserting the primacy of federal law. See Infra, at 522, 525-530. The Court, however, simply ignores the settled principle that for purposes of adjudicating constitutional claims Congress, which has the power to do so under Art. III of the Constitution, has effectively cast the district courts sitting in habeas in the role of surrogate Supreme Courts.10
74
Today's opinion itself starkly exposes the illogic of the Court's seeming premise that the rights recognized in Mapp somehow suddenly evaporate after all direct appeals are exhausted. For the Court would not bar assertion of Fourth Amendment claims on habeas if the defendant was not accorded "an opportunity for full and fair litigation of his claim in the state courts." Ante, at 469. See also Ante, at 480, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 250, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973) (Powell, J., concurring); Ante, at 482, 486, 489-490, 493-494, and n. 37. But this "exception" is impossible if the Court really means that the "rule" that Fourth Amendment claims are not cognizable on habeas is constitutionally based. For if the Constitution mandates that "rule" because it is a "dubious assumption that law enforcement authorities would fear that federal habeas review might reveal flaws in a search or seizure that went undetected at trial and on appeal," Ante, at 493, is it not an equally "dubious assumption" that those same police officials would fear that federal habeas review might reveal that the state courts had denied the defendant an opportunity to have a full and fair hearing on his claim that went undetected at trial and on appeal?11 And to the extent the Court is making the unjustifiable assumption that our certiorari jurisdiction is adequate to correct "routine" condonation of Fourth Amendment violations by state courts, surely it follows A fortiori that our jurisdiction is adequate to redress the "egregious" situation in which the state courts did not even accord a fair hearing on the Fourth Amendment claim. The "exception" thus may appear to make the holding more palatable, but it merely highlights the lack of a "constitutional" rationale for today's constriction of habeas jurisdiction.
75
The Court adheres to the holding of Mapp that the Constitution "require(d) exclusion" of the evidence admitted at respondents' trials. Ante, at 481. However, the Court holds that the Constitution "does not require" that respondents be accorded habeas relief if they were accorded "an opportunity for full and fair litigation of (their) Fourth Amendment claim(s)" in state courts. Ante, at 482; see also Ante, at 495 n. 37. Yet once the Constitution was interpreted by Mapp to require exclusion of certain evidence at trial, the Constitution became irrelevant to the manner in which that constitutional right was to be enforced in the federal courts; That inquiry is only a matter of respecting Congress' allocation of federal judicial power between this Court's appellate jurisdiction and a federal district court's habeas jurisdiction. Indeed, by conceding that today's "decision does not mean that the federal (district) court lacks jurisdiction over (respondents') claim(s)," Ibid., the Court admits that respondents have sufficiently alleged that they are "in custody in violation of the Constitution" within the meaning of § 2254 and that there is no "constitutional" rationale for today's holding. Rather, the constitutional "interest balancing" approach to this case is untenable, and I can only view the constitutional garb in which the Court dresses its result as a disguise for rejection of the longstanding principle that there are no "second class" constitutional rights for purposes of federal habeas jurisdiction; it is nothing less than an attempt to provide a veneer of respectability for an obvious usurpation of Congress' Art. III power to delineate the jurisdiction of the federal courts.
II
76
Therefore, the real ground of today's decision—a ground that is particularly troubling in light of its portent for habeas jurisdiction generally—is the Court's novel reinterpretation of the habeas statutes; this would read the statutes as requiring the district courts routinely to deny habeas relief to prisoners "in custody in violation of the Constitution or laws . . . of the United States" as a matter of judicial "discretion"—a "discretion" judicially manufactured today contrary to the express statutory language because such claims are "different in kind" from other constitutional violations in that they "do not 'impugn the integrity of the fact-finding process,' " Ante, at 479, and because application of such constitutional strictures "often frees the guilty." Ante, at 490. Much in the Court's opinion suggests that a construction of the habeas statutes to deny relief for non-"guilt-related" constitutional violations, based on this Court's vague notions of comity and federalism, see, e. g., ante, at 478 n. 11, is the actual premise for today's decision, and although the Court attempts to bury its underlying premises in footnotes, those premises mark this case as a harbinger of future eviscerations of the habeas statutes that plainly does violence to congressional power to frame the statutory contours of habeas jurisdiction.12 For we are told that "(r)esort to habeas corpus, especially for purposes other than to assure that no innocent person suffers an unconstitutional loss of liberty, results in serious intrusions on values important to our system of government," including waste of judicial resources, lack of finality of criminal convictions, friction between the federal and state judiciaries, and incursions on "federalism." Ante, at 491 n. 31. We are told that federal determination of Fourth Amendment claims merely involves "an issue that has no bearing on the basic justice of (the defendant's) incarceration," ante, at 492 n. 31, and that "the ultimate question (in the criminal process should invariably be) guilt or innocence." Ante, at 490; see also ante, at 491 n. 30; ante, at 490, quoting Kaufman v. United States, 394 U.S. 217, 237, 89 S.Ct. 1068, 1079, 22 L.Ed.2d 227 (1969) (Black, J., dissenting). We are told that the "policy arguments" of respondents to the effect that federal courts must be the ultimate arbiters of federal constitutional rights, and that our certiorari jurisdiction is inadequate to perform this task, "stem from a basic mistrust of the state courts as fair and competent forums for the adjudication of federal constitutional rights"; the Court, however, finds itself "unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States," and asserts that it is "unpersuaded" by "the argument that federal judges are more expert in applying federal constitutional law" because "there is 'no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned with respect to the (consideration of Fourth Amendment claims) than his neighbor in the state courthouse.' " Ante, at 493-494, n. 35. Finally, we are provided a revisionist history of the genesis and growth of federal habeas corpus jurisdiction. Ante, at 474-482 (Part II). If today's decision were only that erroneous state-court resolution of Fourth Amendment claims did not render the defendant's resultant confinement "in violation of the Constitution," these pronouncements would have been wholly irrelevant and unnecessary. I am therefore justified in apprehending that the groundwork is being laid today for a drastic withdrawal of federal habeas jurisdiction, if not for all grounds of alleged unconstitutional detention, then at least for claims for example, of double jeopardy, entrapment, self-incrimination, Miranda violations, and use of invalid identification procedures13—that this Court later decides are not "guilt related."
77
To the extent the Court is actually premising its holding on an interpretation of 28 U.S.C. § 2241 or § 2254, it is overruling the heretofore settled principle that federal habeas relief is available to redress Any denial of asserted constitutional rights, whether or not denial of the right affected the truth or fairness of the factfinding process. As Mr. Justice Powell recognized in proposing that the Court re-evaluate the scope of habeas relief as a statutory matter in Schneckloth v. Bustamonte, 412 U.S., at 251, 93 S.Ct., at 2060 (concurring opinion), "on petition for habeas corpus or collateral review filed in a federal district court, whether by state prisoners under 28 U.S.C. § 2254 or federal prisoners under § 2255, the present rule is that Fourth Amendment claims may be asserted and the exclusionary rule must be applied in precisely the same manner as on direct review." This Court has on numerous occasions accepted jurisdiction over collateral attacks by state prisoners premised on Fourth Amendment violations, often over dissents that as a statutory matter such claims should not be cognizable. See e. g., Lefkowitz v. Newsome, 420 U.S. 283, 291-292 and nn. 8, 9, 95 S.Ct. 886, 891, 43 L.Ed.2d 196 (1975); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969); Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Consideration of the merits in each of these decisions reaffirmed the unrestricted scope of habeas jurisdiction, but each decision must be deemed overruled by today's holding.14
78
Federal habeas corpus review of Fourth Amendment claims of state prisoners was merely one manifestation of the principle that "conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review." Fay v. Noia, 372 U.S. 391, 424, 83 S.Ct. 822, 841, 9 L.Ed.2d 837 (1963). This Court's precedents have been "premised in large part on a recognition that the availability of collateral remedies is necessary to insure the integrity of proceedings at and before trial where constitutional rights are at stake. Our decisions leave no doubt that the federal habeas remedy extends to state prisoners alleging that unconstitutionally obtained evidence was admitted against them at trial." Kaufman v. United States, 394 U.S., at 225, 89 S.Ct., at 1073. Some of those decisions explicitly considered and rejected the "policies" referred to by the Court, ante, at 491-492, n. 31. E. g., Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed.2d 469 (1953); Fay v. Noia, supra; Kaufman v. United States, supra. There were no "assumptions" with respect to the construction of the habeas statutes, but reasoned decisions that those policies were an insufficient justification for shutting the federal habeas door to litigants with federal constitutional claims in light of such countervailing considerations as "the necessity that federal courts have the 'last say' with respect to questions of federal law, the inadequacy of state procedures to raise and preserve federal claims, the concern that state judges may be unsympathetic to federally created rights, (and) the institutional constraints on the exercise of this Court's certiorari jurisdiction to review state convictions," 394 U.S., at 225-226, 89 S.Ct., at 1073-1074, as well as the fundamental belief "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. See generally, e. g. Fay v. Noia, supra; Townsend v.Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). As Mr. Justice Harlan, who had dissented from many of the cases initially construing the habeas statutes, readily recognized, habeas jurisdiction as heretofore accepted by this Court was "not only concerned with those rules which substantially affect the fact-finding apparatus of the original trial. Under the prevailing notions, Kaufman v. United States, supra, at 224-226, 89 S.Ct. at 1073-1074, The threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards." Desist v. United States, 394 U.S. 244, 262-263, 89 S.Ct. 1030, 1041, 22 L.Ed.2d 248 (1969) (dissenting) (emphasis supplied). The availability of collateral review assures "that the lower federal and state courts toe the constitutional line." Id., at 264, 89 S.Ct. at 1042. "(H) abeas lies to inquire into every constitutional defect in any criminal trial, where the petitioner remains 'in custody' because of the judgment in that trial, unless the error committed was knowingly and deliberately waived or constitutes mere harmless error. That seems to be the implicit premise of Brown v. Allen, supra, and the clear purport of Kaufman v. United States, supra. . . . The primary justification given by the Court for extending the scope of habeas to all alleged constitutional errors is that it provides a quasi-appellate review function, forcing trial and appellate courts in both the federal and state system to toe the constitutional mark." Mackey v. United States, 401 U.S. 667, 685-687, 91 S.Ct. 1160, 1176-1177, 28 L.Ed.2d 404 (1971) (opinion of Harlan, J.). See also Brown v. Allen, supra, 344 U.S., at 508, 73 S.Ct., at 446 (opinion of Frankfurter, J.) ("(N)o binding weight is to be attached to the State determination. The congressional requirement is greater. The State Court cannot have the last say when it, though on fair consideration of what procedurally may be deemed fairness, may have misconceived a federal constitutional right"); Fay v. Noia, supra, 372 U.S., at 422, 83 S.Ct., at 840. In effect, habeas jurisdiction is a deterrent to unconstitutional actions by trial and appellate judges, and a safeguard to ensure that rights secured under the Constitution and federal laws are not merely honored in the breach. "(I)ts function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints." Id., at 401-402, 83 S.Ct. at 829. "(T)he historical role of the writ of habeas corpus (is that of) an effective and imperative remedy for detentions contrary to fundamental law." Id., at 438, 83 S.Ct. at 849.
79
At least since Brown v. Allen, supra, detention emanating from judicial proceedings in which constitutional rights were denied has been deemed "contrary to fundamental law," and all constitutional claims have thus been cognizable on federal habeas corpus. There is no foundation in the language or history of the habeas statutes for discriminating between types of constitutional transgressions, and efforts to relegate certain categories of claims to the status of "second-class rights" by excluding them from that jurisdiction have been repulsed.15 Today's opinion, however, marks the triumph of those who have sought to establish a hierarchy of constitutional rights, and to deny for all practical purposes a federal forum for review of those rights that this Court deems less worthy or important. Without even paying the slightest deference to principles of Stare decisis or acknowledging Congress' failure for two decades to alter the habeas statutes in light of our interpretation of congressional intent to render all federal constitutional contentions cognizable on habeas, the Court today rewrites Congress' jurisdictional statutes as heretofore construed and bars access to federal courts by state prisoners with constitutional claims distasteful to a majority of my Brethren. But even ignoring principles of Stare decisis dictating that Congress is the appropriate vehicle for embarking on such a fundamental shift in the jurisdiction of the federal courts, I can find no adequate justification elucidated by the Court for concluding that habeas relief for all federal constitutional claims is no longer compelled under the reasoning of Brown, Fay, and Kaufman.
80
I would address the Court's concerns for effective utilization of scarce judicial resources, finality principles, federal-state friction, and notions of "federalism" only long enough to note that such concerns carry no more force with respect to non-"guilt-related" constitutional claims than they do with respect to claims that affect the accuracy of the factfinding process. Congressional conferral of federal habeas jurisdiction for the purpose of entertaining petitions from state prisoners necessarily manifested a conclusion that such concerns could not be controlling, and any argument for discriminating among constitutional rights must therefore depend on the nature of the constitutional right involved.
81
The Court, focusing on Fourth Amendment rights as it must to justify such discrimination, thus argues that habeas relief for non-"guilt-related" constitutional claims is not mandated because such claims do not affect the "basic justice" of a defendant's detention, see Ante, at 492 n. 31; this is presumably because the "ultimate goal" of the criminal justice system is "truth and justice." E. g., ante, at 490, and 491 n. 30.16 This denigration of constitutional guarantees and Constitutionally mandated procedures, relegated by the Court to the status of mere utilitarian tools, must appall citizens taught to expect judicial respect and support for their constitutional rights. Even if punishment of the "guilty" were society's highest value—and procedural safeguards denigrated to this end—in a constitution that a majority of the Members of this Court would prefer, that is not the ordering of priorities under the Constitution forged by the Framers, and this Court's sworn duty is to uphold that Constitution and not to frame its own. The procedural safeguards mandated in the Framers' Constitution are not admonitions to be tolerated only to the extent they serve functional purposes that ensure that the "guilty" are punished and the "innocent" freed; rather, every guarantee enshrined in the Constitution, our basic charter and the guarantor of our most precious liberties, is by it endowed with an independent vitality and value, and this Court is not free to curtail those constitutional guarantees even to punish the most obviously guilty. Particular constitutional rights that do not affect the fairness of factfinding procedures cannot for that reason be denied at the trial itself. What possible justification then can there be for denying vindication of such rights on federal habeas when state courts do deny those rights at trial? To sanction disrespect and disregard for the Constitution in the name of protecting society from law-breakers is to make the government itself lawless and to subvert those values upon which our ultimate freedom and liberty depend.17 "The history of American freedom is, in no small measure, the history of procedure," Malinski v. New York, 324 U.S. 401, 414, 65 S.Ct. 781, 787, 89 L.Ed. 1029 (1945) (opinion of Frankfurter, J.), and as Mr. Justice Holmes so succinctly reminded us, it is "a less evil that some criminals should escape than that the Government should play an ignoble part." Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 579, 72 L.Ed. 944 (1928) (dissenting opinion). "(I)t is an abuse to deal too casually and too lightly with rights guaranteed by the Federal Constitution, even though they involve limitations upon State power and may be invoked by those morally unworthy." Brown v. Allen, 344 U.S., at 498, 73 S.Ct., at 442 (opinion of Frankfurter, J.). Enforcement of Federal constitutional rights that redress constitutional violations directed against the "guilty" is a particular function of Federal habeas review, lest judges trying the "morally unworthy" be tempted not to execute the supreme law of the land. State judges popularly elected may have difficulty resisting popular pressures not experienced by federal judges given lifetime tenure designed to immunize them from such influences, and the federal habeas statutes reflect the congressional judgment that such detached federal review is a salutary safeguard against Any detention of an individual "in violation of the Constitution or laws . . . of the United States."
82
Federal courts have the duty to carry out the congressionally assigned responsibility to shoulder the ultimate burden of adjudging whether detentions violate federal law, and today's decision substantially abnegates that duty. The Court does not, because it cannot, dispute that institutional constraints totally preclude any possibility that this Court can adequately oversee whether state courts have properly applied federal law,18 and does not controvert the fact that federal habeas jurisdiction is partially designed to ameliorate that inadequacy. Thus, although I fully agree that state courts "have a constitutional obligation to safeguard personal liberties and to uphold federal law," and that there is no "general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States," Ante, at 494 n. 35, I cannot agree that it follows that, as the Court today holds, federal-court determination of almost all Fourth Amendment claims of state prisoners should be barred and that state-court resolution of those issues should be insulated from the federal review Congress intended. For, as Mr. Justice Frankfurter so aptly framed the issue in rejecting similar contentions in construing the habeas statutes in Brown v. Allen, supra:
83
"Congress could have left the enforcement of federal constitutional rights governing the administration of criminal justice in the States exclusively to the State courts. These tribunals are under the same duty as the federal courts to respect rights under the United States Constitution. . . . It is not for us to determine whether this power should have been vested in the federal courts. . . . (T)he wisdom of such a modification in the law is for Congress to consider, particularly in view of the effect of the expanding concept of due process upon enforcement by the States of their criminal laws. It is for this Court to give fair effect to the habeas corpus jurisdiction as enacted by Congress. By giving the federal courts that jurisdiction, Congress has imbedded into federal legislation the historic function of habeas corpus adapted to reaching an enlarged area of claims. . . .
84
". . . But the prior State determination of a claim under the United States Constitution cannot foreclose consideration of such a claim, else the State court would have the final say which the Congress, by the Act of 1867, provided it should not have." 344 U.S., at 499-500, 73 S.Ct., at 442-443. (emphasis supplied).
85
"State adjudication of questions of law cannot, under the habeas corpus statute, be accepted as binding. It is precisely these questions that the federal judge is commanded to decide." Id., at 506, 73 S.Ct., at 446.
86
"Congress has the power to distribute among the courts of the States and of the United States jurisdiction to determine federal claims. It has seen fit to give this Court power to review errors of federal law in State determinations, and in addition to give to the lower federal courts power to inquire into federal claims, by way of habeas corpus. . . . But it would be in disregard of what Congress has expressly required to deny State prisoners access to the federal courts.
87
". . . Insofar as this jurisdiction enables federal district courts to entertain claims that State Supreme Courts have denied rights guaranteed by the United States Constitution, it is not a case of a lower court sitting in judgment on a higher court. It is merely one aspect of respecting the Supremacy Clause of the Constitution whereby federal law is higher than State law. It is for the Congress to designate the member in the hierarchy of the federal judiciary to express the higher law. The fact that Congress has authorized district courts to be the organ of the higher law rather than a Court of Appeals, or exclusively this Court, does not mean that it allows a lower court to overrule a higher court. It merely expresses the choice of Congress how the superior authority of federal law should be asserted." 344 U.S., at 508-510, 73 S.Ct., at 447-448 (emphasis supplied).
88
Congress' action following Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), emphasized "the choice of Congress how the superior authority of federal law should be asserted" in federal courts. Townsend v. Sain outlined the duty of federal habeas courts to conduct fact-finding hearings with respect to petitions brought by state prisoners, and Fay v. Noia defined the contours of the "exhaustion of state remedies" prerequisite in § 2254 in light of its purpose of according state courts the first opportunity to correct their own constitutional errors. Congress expressly modified the habeas statutes to incorporate the Townsend standards so as to accord a limited and carefully circumscribed res judicata effect to the factual determinations of state judges. But Congress did not alter the principle of Brown, Fay, and Kaufman that collateral relief is to be available with respect to any constitutional deprivation and that federal district judges, subject to review in the courts of appeals and this Court, are to be the spokesmen of the supremacy of federal law. Indeed, subsequent congressional efforts to amend those jurisdictional statutes to effectuate the result that my Brethren accomplish by judicial fiat have consistently proved unsuccessful. There remains, as noted before, no basis whatsoever in the language or legislative history of the habeas statutes for establishing such a hierarchy of federal rights; certainly there is no constitutional warrant in this Court to override a congressional determination respecting federal-court review of decisions of state judges determining constitutional claims of state prisoners.
89
In any event, respondents' contention that Fourth Amendment claims, like all other constitutional claims, must be cognizable on habeas, does not rest on the ground attributed to them by the Court—that the state courts are rife with animosity to the constitutional mandates of this Court. It is one thing to assert that state courts, as a general matter, accurately decide federal constitutional claims; it is quite another to generalize from that limited proposition to the conclusion that, despite congressional intent that federal courts sitting in habeas must stand ready to rectify any constitutional errors that are nevertheless committed, federal courts are to be judicially precluded from ever considering the merits of whole categories of rights that are to be accorded less procedural protection merely because the Court proclaims that they do not affect the accuracy or fairness of the factfinding process. "Under the guise of fashioning a procedural rule, we are not justified in wiping out the practical efficacy of a jurisdiction conferred by Congress on the District Courts. Rules which in effect treat all these cases indiscriminately as frivolous do not fall far short of abolishing this head of jurisdiction." Brown v. Allen, 344 U.S., at 498-499, 73 S.Ct., at 442 (opinion of Frankfurter, J.). To the extent state trial and appellate judges faithfully, accurately, and assiduously apply federal law and the constitutional principles enunciated by the federal courts, such determinations will be vindicated on the merits when collaterally attacked. But to the extent federal law is erroneously applied by the state courts, there is no authority in this Court to deny defendants the right to have those errors rectified by way of federal habeas;19 indeed, the Court's reluctance to accept Congress' desires along these lines can only be a manifestation of this Court's mistrust for Federal Judges. Furthermore, some might be expected to dispute the academic's dictum seemingly accepted by the Court that a federal judge is not necessarily more skilled than a state judge in applying federal law. See ante, at 494 n. 35. For the Supremacy Clause of the Constitution proceeds on a different premise, and Congress, as it was constitutionally empowered to do, made federal judges (and initially federal district court judges) "the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States." Zwickler v. Koota, 389 U.S. 241, 247, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967).
90
If proof of the necessity of the federal habeas jurisdiction were required, the disposition by the state courts of the underlying Fourth Amendment issues presented by these cases supplies it. In No. 74-1055, respondent was arrested pursuant to a statute which obviously is unconstitutional under Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Even apart from its vagueness and concomitant potential for arbitrary and discriminatory enforcement, the statute purports to criminalize the presence of one unable to account for his presence in a situation where a reasonable person might believe that public safety demands identification. See ante, at 469 n. 1. It is no crime in a free society not to have "identification papers" on one's person, and the statute is a palpable effort to enable police to arrest individuals on the basis of mere suspicion and to facilitate detention even when there is no probable cause to believe a crime has been or is likely to be committed. See 405 U.S., at 168-170, 92 S.Ct. at 846-47. Without elaborating on the various arguments buttressing this result, including the self-incrimination aspects of the ordinance and its attempt to circumvent Fourth Amendment safeguards in a situation that, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), would at most permit law enforcement officials to conduct a protective search for weapons, I would note only that the ordinance, due to the Court's failure to address its constitutionality today, remains in full force and effect, thereby affirmatively encouraging further Fourth Amendment violations. Moreover, the fact that only a single state judge ever addressed the validity of the ordinance, and the lack of record evidence as to why or how he rejected respondent's claim, gives me pause as to whether there is any real content to the Court's "exception" for bringing Fourth Amendment claims on habeas in situations in which state prisoners were not accorded an opportunity for a full and fair state-court resolution of those claims; that fact also makes irrelevant the Court's presumption that deterrence is not furthered when there is federal habeas review of a search-and-seizure claim that was erroneously rejected by "two or more tiers of state courts." Ante, at 491.
91
Even more violative of constitutional safeguards is the manner in which the Nebraska courts dealt with the merits in respondent Rice's case. Indeed, the manner in which Fourth Amendment principles were applied in the Nebraska Supreme Court is paradigmatic of Congress' concern respecting attempts by state courts to structure Fourth Amendment jurisprudence so as not to upset convictions of the "guilty" or the "unworthy." As Judge Urbom fully detailed in two thorough and thoughtful opinions in the District Court on Rice's petition for habeas, the affidavit upon which the Omaha police obtained a warrant and thereby searched Rice's apartment was clearly deficient under prevailing constitutional standards, and no extant exception to the warrant requirement justified the search absent a valid warrant. Yet the Nebraska Supreme Court upheld the search on the alternative and patently untenable ground that there is no Fourth Amendment violation if a defective warrant is supplemented At a suppression hearing By facts that theoretically could have been, but were not, presented to the issuing magistrate. Such a construction of the Fourth Amendment would obviously abrogate the warrant requirement of the Fourth Amendment and the principle that its "protection consists in requiring that those inferences (as to whether the data available justify an intrusion upon a person's privacy) be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). Yet the Court today, by refusing to reaffirm out precedents, see Ante, at 473 n. 3, even casts some doubt on that heretofore unquestioned precept of Fourth Amendment jurisprudence that "an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate. See Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 1511, 12 L.Ed.2d 723. A contrary rule would, of course, render the warrant requirements of the Fourth Amendment meaningless." Whiteley v. Warden, 401 U.S., at 565 n. 8, 91 S.Ct., at 1035. Of course, for the Court strongly to reiterate the fundamentality of this principle would only highlight the Nebraska Supreme Court's distortion of the Fourth Amendment in an emotionally charged case, and thereby accentuate the general potential for erroneous state-court adjudication of Fourth Amendment claims.20
III
92
Other aspects of today's decision are deserving of comment but one particularly merits special attention. For the Court's failure to limit today's ruling to prospective application stands in sharp contrast to recent cases that have so limited decisions expanding or affirming constitutional rights. Respondents, relying on the explicit holding of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), that a petition for a writ of certiorari is not a necessary predicate for federal habeas relief, and accepting at face value the clear import of our prior habeas cases that all unconstitutional confinements may be challenged on federal habeas, contend that any new restriction on state prisoners' ability to obtain habeas relief should be held to be prospective only. The Court, however, dismisses respondents' effective inability to have a single federal court pass on their federal constitutional claims with the offhand remark that "respondents were, of course, free to file a timely petition for certiorari prior to seeking federal habeas corpus relief." Ante, at 495 n. 38. To be sure, the fact that the time limits for invoking our certiorari jurisdiction with respect to criminal cases emanating from state courts are non-jurisdictional would dictate that respondents are at least free to file out-of-time certiorari petitions; under the Court's "direct review" distinction delineated today, we would still have authority to address the substance of respondents' eminently and concededly meritorious Fourth Amendment claims. Of course, federal review by certiorari in this Court is a matter of grace, and it is grace now seldom bestowed at the behest of a criminal defendant. I have little confidence that three others of the Brethren would join in voting to grant such petitions, thereby reinforcing the notorious fact that our certiorari jurisdiction is inadequate for containing state criminal proceedings within constitutional bounds and underscoring Congress' wisdom in mandating a broad federal habeas jurisdiction for the district courts. In any event, since we are fully familiar with the records in these cases, respondents are owed at least review in this Court, particularly since it shuts the doors of the district courts in a decision that marks such a stark break with our precedents on the scope of habeas relief; indeed, if the Court were at all disposed to safeguard constitutional rights and educate state and federal judges concerning the contours of Fourth Amendment jurisprudence in various situations, it would decide these cases on the merits rather than employ a procedural ruse that ensures respondents' continued unconstitutional confinement.
IV
93
In summary, while unlike the Court I consider that the exclusionary rule is a constitutional ingredient of the Fourth Amendment, any modification of that rule should at least be accomplished with some modicum of logic and justification not provided today. See, e. g., Dershowitz & Ely, Harris v. New York : Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1198 (1971). The Court does not disturb the holding of Mapp v. Ohio that, as a matter of federal constitutional law, illegally obtained evidence must be excluded from the trial of a criminal defendant whose rights were transgressed during the search that resulted in acquisition of the evidence. In light of that constitutional rule it is a matter for Congress, not this Court, to prescribe what federal courts are to review state prisoners' claims of constitutional error committed by state courts. Until this decision, our cases have never departed from the construction of the habeas statutes as embodying a congressional intent that, however substantive constitutional rights are delineated or expanded, those rights may be asserted as a procedural matter under federal habeas jurisdiction. Employing the transparent tactic that today's is a decision construing the Constitution, the Court usurps the authority vested by the Constitution in the Congress to reassign federal judicial responsibility for reviewing state prisoners' claims of failure of state courts to redress violations of their Fourth Amendment rights. Our jurisdiction is eminently unsuited for that task, and as a practical matter the only result of today's holding will be that denials by the state courts of claims by state prisoners of violations of their Fourth Amendment rights will go unreviewed by a federal tribunal. I fear that the same treatment ultimately will be accorded state prisoners' claims of violations of other constitutional rights; thus the potential ramifications of this case for federal habeas jurisdiction generally are ominous. The Court, no longer content just to restrict forthrightly the constitutional rights of the citizenry, has embarked on a campaign to water down even such constitutional rights as it purports to acknowledge by the device of foreclosing resort to the federal habeas remedy for their redress.
94
I would affirm the judgments of the Courts of Appeals.
95
Mr. Justice WHITE, dissenting.
96
For many of the reasons stated by Mr. Justice BRENNAN, I cannot agree that the writ of habeas corpus should be any less available to those convicted of state crimes where they allege Fourth Amendment violations than where other constitutional issues are presented to the federal court. Under the amendments to the habeas corpus statute, which were adopted after Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and represented an effort by Congress to lend a modicum of finality to state criminal judgments, I cannot distinguish between Fourth Amendment and other constitutional issues.
97
Suppose, for example, that two confederates in crime, Smith and Jones, are tried separately for a state crime and convicted on the very same evidence, including evidence seized incident to their arrest allegedly made without probable cause. Their constitutional claims are fully aired, rejected, and preserved on appeal. Their convictions are affirmed by the State's highest court. Smith, the first to be tried, does not petition for certiorari, or does so but his petition is denied. Jones, whose conviction was considerably later, is more successful. His petition for certiorari is granted and his conviction reversed because this Court, without making any new rule of law, simply concludes that on the undisputed facts the arrests were made without probable cause and the challenged evidence was therefore seized in violation of the Fourth Amendment. The State must either retry Jones or release him, necessarily because he is deemed in custody in violation of the Constitution. It turns out that without the evidence illegally seized, the State has no case; and Jones goes free. Smith then files his petition for habeas corpus. He makes no claim that he did not have a full and fair hearing in the state courts, but asserts that his Fourth Amendment claim had been erroneously decided and that he is being held in violation of the Federal Constitution. He cites this Court's decision in Jones' case to satisfy any burden placed on him by § 2254 to demonstrate that the state court was in error. Unless the Court's reservation, in its present opinion, of those situations where the defendant has not had a full and fair hearing in the state courts is intended to encompass all those circumstances under which a state criminal judgment may be re-examined under § 2254—in which event the opinion is essentially meaningless and the judgment erroneous—Smith's petition would be dismissed, and he would spend his life in prison while his colleague is a free man. I cannot believe that Congress intended this result.
98
Under the present habeas corpus statute, neither Rice's nor Powell's application for habeas corpus should be dismissed on the grounds now stated by the Court. I would affirm the judgments of the Courts of Appeals as being acceptable applications of the exclusionary rule applicable in state criminal trials by virtue of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
99
I feel constrained to say, however, that I would join four or more other Justices in substantially limiting the reach of the exclusionary rule as presently administered under the Fourth Amendment in federal and state criminal trials.
100
Whether I would have joined the Court's opinion in Mapp v. Ohio, supra, had I then been a Member of the Court, I do not know. But as time went on after coming to this bench, I became convinced that both Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and Mapp v. Ohio had overshot their mark insofar as they aimed to deter lawless action by law enforcement personnel and that in many of its applications the exclusionary rule was not advancing that aim in the slightest and that in this respect it was a senseless obstacle to arriving at the truth in many criminal trials.
101
The rule has been much criticized and suggestions have been made that it should be wholly abolished, but I would overrule neither Weeks v. United States nor Mapp v. Ohio. I am nevertheless of the view that the rule should be substantially modified so as to prevent its application in those many circumstances where the evidence at issue was seized by an officer acting in the good-faith belief that his conduct comported with existing law and having reasonable grounds for this belief. These are recurring situations; and recurringly evidence is excluded without any realistic expectation that its exclusion will contribute in the slightest to the purposes of the rule, even though the trial will be seriously affected or the indictment dismissed.
102
An officer sworn to uphold the law and to apprehend those who break it inevitably must make judgments regarding probable cause to arrest: Is there reasonable ground to believe that a crime has been committed and that a particular suspect has committed it? Sometimes the historical facts are disputed or are otherwise in doubt. In other situations the facts may be clear so far as they are known, yet the question of probable cause remains. In still others there are special worries about the reliability of secondhand information such as that coming from informants. In any of these situations, which occur repeatedly, when the officer is convinced that he has probable cause to arrest he will very likely make the arrest. Except in emergencies, it is probable that his colleagues or superiors will participate in the decision, and it may be that the officer will secure a warrant, although warrantless arrests on probable cause are not forbidden by the Constitution or by state law. Making the arrest in such circumstances is precisely what the community expects the police officer to do. Neither officers nor judges issuing arrest warrants need delay apprehension of the suspect until unquestioned proof against him has accumulated. The officer may be shirking his duty if he does so.
103
In most of these situations, it is hoped that the officer's judgment will be correct; but experience tells us that there will be those occasions where the trial or appellate court will disagree on the issue of probable cause, no matter how reasonable the grounds for arrest appeared to the officer and though reasonable men could easily differ on the question. It also happens that after the events at issue have occurred, the law may change, dramatically or ever so slightly, but in any event sufficiently to require the trial judge to hold that there was not probable cause to make the arrest and to seize the evidence offered by the prosecution. It may also be, as in the Powell case now before us, that there is probable cause to make an arrest under a particular criminal statute but when evidence seized incident to the arrest is offered in support of still another criminal charge, the statute under which the arrest and seizure were made is declared unconstitutional and the evidence ruled inadmissible under the exclusionary rule as presently administered.
104
In these situations, and perhaps many others, excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that in each of them the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty. It is true that in such cases the courts have ultimately determined that in their view the officer was mistaken; but it is also true that in making constitutional judgments under the general language used in some parts of our Constitution, including the Fourth Amendment, there is much room for disagreement among judges, each of whom is convinced that both he and his colleagues are reasonable men. Surely when this Court divides five to four on issues of probable cause, it is not tenable to conclude that the officer was at fault or acted unreasonably in making the arrest.
105
When law enforcement personnel have acted mistakenly, but in good faith and on reasonable grounds, and yet the evidence they have seized is later excluded, the exclusion can have no deterrent effect. The officers, if they do their duty, will act in similar fashion in similar circumstances in the future; and the only consequence of the rule as presently administered is that unimpeachable and probative evidence is kept from the trier of fact and the truth-finding function of proceedings is substantially impaired or a trial totally aborted.
106
Admitting the evidence in such circumstances does not render judges participants in Fourth Amendment violations. The violation, if there was one, has already occurred and the evidence is at hand. Furthermore, there has been only mistaken, but unintentional and faultless, conduct by enforcement officers. Exclusion of the evidence does not cure the invasion of the defendant's rights which he has already suffered. Where an arrest has been made on probable cause but the defendant is acquitted, under federal law the defendant has no right to damages simply because his innocence has been proved. "A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does." Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). The officer is also excused from liability for "acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied." Ibid. There is little doubt that as far as civil liability is concerned, the rule is the same under federal law where the officer mistakenly but reasonably believes he has probable cause for an arrest. In Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), the Court announced generally that officers of the executive branch of the government should be immune from liability where their action is reasonable "in light of all the circumstances, coupled with good-faith belief." Id., at 247-248, 94 S.Ct., at 1692. The Court went on to say:
107
"Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity—absolute or qualified—for their acts, is a recognition that they may error. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all." Id., at 241-242, 94 S.Ct. at 1689 (footnote omitted).
108
The Court has proceeded on this same basis in other contexts. O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).
109
If the defendant in criminal cases may not recover for a mistaken but good-faith invasion of his privacy, it makes even less sense to exclude the evidence solely on his behalf. He is not at all recompensed for the invasion by merely getting his property back. It is often contraband and stolen property to which he is not entitled in any event. He has been charged with crime and is seeking to have probative evidence against him excluded, although often it is the instrumentality of the crime. There is very little equity in the defendant's side in these circumstances. The exclusionary rule, a judicial construct, seriously short-changes the public interest as presently applied. I would modify it accordingly.
1
The ordinance provides:
"Every person is a vagrant who:
"(1) Loiters or wanders upon the streets or from place to place without apparent reason or business and (2) who refuses to identify himself and to account for his presence when asked by a police officer to do so (3) if surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification."
2
In support of the vagueness holding the court relied principally on Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), where we invalidated a city ordinance in part defining vagrants as "persons wandering or strolling around from place to place without any lawful purpose or object . . .." Id., at 156-157, n. 1, 92 S.Ct. at 840. Noting the similarity between the first element of the Henderson ordinance, see n. 1, Supra and the Jacksonville ordinance it concluded that the second and third elements of the Henderson ordinance were not sufficiently specific to cure its overall vagueness. 507 F.2d, at 95-97. Petitioner Stone challenges these conclusions, but in view of our disposition of the case we need not consider this issue.
3
The sole evidence presented to the magistrate was the affidavit in support of the warrant application. It indicated that the police believed explosives and illegal weapons were present in Rice's home because (1) Rice was an official of the NCCF, (2) a violent killing of an officer had occurred and it appeared that the NCCF was involved, and (3) police had received information in the past that Rice possessed weapons and explosives, which he had said should be used against the police. See 388 F.Supp., at 189 n. 1. In concluding that there existed probable cause for issuance of the warrant, although the Nebraska Supreme Court found the affidavit alone sufficient, it also referred to information contained in testimony adduced at the suppression hearing but not included in the affidavit. 188 Neb. 728, 738-739, 199 N.W.2d 480, 487-488. See also Id., at 754, 199 N.W.2d, at 495 (concurring opinion). The District Court limited its probable-cause inquiry to the face of the affidavit, see Spinelli v. United States, 393 U.S., at 413 n. 3, 89 S.Ct., at 587; Aguilar v. Texas, 378 U.S., at 109 n. 1, 84 S.Ct., at 1511, and concluded probable cause was lacking. Petitioner Wolff contends that police should be permitted to supplement the information contained in an affidavit for a search warrant at the hearing on a motion to suppress, a contention that we have several times rejected, see, e. g., Whiteley v. Warden, 401 U.S. 560, 565 n. 8, 91 S.Ct. 1031, 1035, 28 L.Ed.2d 306 (1971); Aquilar v. Texas, supra, at 109 n. 1, 84 S.Ct. at 1511, and need not reach again here.
4
The District Court further held that the evidence of dynamite particles found on Rice's clothing should have been suppressed as the tainted fruit of an arrest warrant that would not have been issued but for the unlawful search of his home. 388 F.Supp., at 202-207. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).
5
In the orders granting certiorari in these cases we requested that counsel in Stone v. Powell and Wolff v. Rice respectively address the questions:
"Whether, in light of the fact that the District Court found that the Henderson, Nev., police officer had probable cause to arrest respondent for violation of an ordinance which at the time of the arrest had not been authoritatively determined to be unconstitutional, respondent's claim that the gun discovered as a result of a search incident to that arrest violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution is one cognizable under 28 U.S.C. § 2254.
"Whether the constitutional validity of the entry and search of respondent's premises by Omaha police officers under the circumstances of this case is a question properly cognizable under 28 U.S.C. § 2254."
6
It is now well established that the phrase "habeas corpus" used alone refers to the common-law writ of habeas corpus Ad subjiciendum, known as the "Great Writ." Ex parte Bollman, 4 Cranch 75, 95, 2 L.Ed. 554 (1807) (Marshall, C. J.).
7
Prior to 1889 there was, in practical effect, no appellate review in federal criminal cases. The possibility of Supreme Court review on certificate of division of opinion in the circuit court was remote because of the practice of single district judges' holding circuit court. See P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 1539-1540 (2d ed. 1973); F. Frankfurter & J. Landis, The Business of the Supreme Court 31-32, 79-80, and n. 107 (1927). Pressure naturally developed for expansion of the scope of habeas corpus to reach otherwise unreviewable decisions involving fundamental rights. See Ex parte Siebold, 100 U.S. 371, 376-377, 25 L.Ed. 717 (1880); Bator, Finality in Criminal Law and Federal Habeas Corpus For State Prisoners, 76 Harv.L.Rev. 441, 473, and n. 75 (1963).
8
The expansion occurred primarily with regard to (i) convictions based on assertedly unconstitutional statutes, E. g., Ex parte Siebold, supra, or (ii) detentions based upon an allegedly illegal sentence, E. g., Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874). See Bator, Supra, n. 7, at 465-474.
9
There has been disagreement among scholars as to whether the result in Brown v. Allen Was foreshadowed by the Court's decision in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923). Compare Hart, Foreword: The Time Chart of the Justices, 73 Harv.L.Rev. 84, 105 (1959); Reitz, Federal Habeas Corpus; Impact of an Abortive State Proceeding, 74 Harv.L.Rev. 1315, 1328-1329 (1961), with Bator, Supra, n. 7, at 488-491. See also Fay v. Noia, 372 U.S. 391, 421, and n. 30 (1963); Id., at 457-460, 83 S.Ct. 822, 839, 858-860, 9 L.Ed.2d 837 (Harlan, J., dissenting).
10
Despite the expansion of the scope of the writ, there has been no change in the established rule with respect to nonconstitutional claims. The writ of habeas corpus and its federal counterpart, 28 U.S.C. § 2255, "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982 (1947). For this reason, nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings. Id., at 178-179, 67 S.Ct., at 1590-1591; Davis v. United States, 417 U.S. 333, 345-346, and n. 15, 94 S.Ct. 2298, 2304-2305, 41 L.Ed.2d 109 (1974). Even those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged error constituted " 'a fundamental defect which inherently results in a complete miscarriage of justice,' " id., at 346, 94 S.Ct. at 2305, quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962).
11
In construing broadly the power of a federal district court to consider constitutional claims presented in a petition for writ of habeas corpus, the Court in Fay also reaffirmed the equitable nature of the writ, noting that "(d)iscretion is implicit in the statutory command that the judge . . . 'dispose of the matter as law and justice require,' 28 U.S.C. § 2243." 372 U.S., at 438, 83 S.Ct. at 848. More recently, in Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), holding that a state prisoner who failed to make a timely challenge to the composition of the grand jury that indicted him cannot bring such a challenge in a post-conviction federal habeas corpus proceeding absent a claim of actual prejudice, we emphasized:
"This Court has long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power. See Fay v. Noia, 372 U.S. 391, 425-426, 83 S.Ct. 822, 841-842, 9 L.Ed.2d 837, 860-861." Id., at 539, 96 S.Ct., at 1710.
12
Compare, e. g., United States v. Re, 372 F.2d 641 (C.A.2), cert. denied, 388 U.S. 912, 87 S.Ct. 2112, 18 L.Ed.2d 1352 (1967); United States, v. Jenkins, 281 F.2d 193 (C.A.3 1960); Eisner v. United States, 351 F.2d 55 (C.A.6 1965); De Welles v. United States, 372 F.2d 67 (C.A.7), cert. denied, 388 U.S. 919, 87 S.Ct. 2140, 18 L.Ed.2d 1365 (1967); Williams v. United States, 307 F.2d 366 (C.A.9 1962); Armstead v. United States, 318 F.2d 725 (C.A.5 1963), with, E. g., United States v. Sutton, 321 F.2d 221 (C.A.4 1963); Gaitan v. United States, 317 F.2d 494 (C.A.10 1963). See also Thornton v. United States, 125 U.S.App.D.C. 114, 368 F.2d 822 (1966) (search-and-seizure claims not cognizable under § 2255 absent special circumstances).
13
See, e. g., Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970).
14
In Newsome The Court focused on the issue whether a state defendant's plea of guilty waives federal habeas corpus review where state law does not foreclose review of the plea on direct appeal, and did not consider the substantive scope of the writ. See 420 U.S., at 287 n. 4, 95 S.Ct. at 888. Similarly, in Cardwell And Cady The question considered here was not presented in the petition for certiorari, and in neither case was relief granted on the basis of a search-and-seizure claim. In Cardwell The plurality expressly noted that it was not addressing the issue of the substantive scope of the writ. See 417 U.S., at 596, and n. 12, 94 S.Ct., at 2472.
15
As Mr. Justice Black commented in dissent, 394 U.S., at 231, 239, 89 S.Ct., at 1076, 1080, the Kaufman Majority made no effort to justify its result in light of the long-recognized deterrent purpose of the exclusionary rule. Instead, the Court relied on a series of prior cases as implicitly establishing the proposition that search-and-seizure claims are cognizable in federal habeas corpus proceedings. See Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). But only in Mancusi Did this Court order habeas relief on the basis of a search-and-seizure claim, and in that case, as well as in Warden, The issue of the substantive scope of the writ was not presented to the Court in the petition for writ of certiorari. Moreover, of the other "numerous occasions" cited by Mr. Justice BRENNAN's dissent, Post, At 518-519, in which the Court has accepted jurisdiction over collateral attacks by state prisoners raising Fourth Amendment claims, in only one case Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) was relief granted on that basis. And in Whiteley, As in Mancusi, The issue of the substantive scope of the writ was not presented in the petition for certiorari. As emphasized by Mr. Justice Black, only in the most exceptional cases will we consider issues not raised in the petition. 394 U.S., at 239, and n. 7, 89 S.Ct., at 1080.
16
The issue in Kaufman Was the scope of § 2255. Our decision today rejects the dictum in Kaufman Concerning the applicability of the exclusionary rule in federal habeas corpus review of state-court decisions pursuant to § 2254. To the extent the application of the exclusionary rule in Kaufman Did not rely upon the supervisory role of this Court over the lower federal courts, cf. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), see Infra, at 484, the rationale for its application in that context is also rejected.
17
We find it unnecessary to consider the other issues concerning the exclusionary rule, or the statutory scope of the habeas corpus statute, raised by the parties. These include, principally, whether in view of the purpose of the rule, it should be applied on a Per se Basis without regard to the nature of the constitutional claim or the circumstances of the police action.
18
See generally J. Landynski, Search and Seizure and the Supreme Court (1966); N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937).
19
The roots of the Weeks Decision lay in an early decision, Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), where the Court held that the compulsory production of a person's private books and papers for introduction against him at trial violated the Fourth and Fifth Amendments. Boyd, However, had been severely limited in Adams v. New York, where the Court, emphasizing that the "law held unconstitutional (in Boyd) virtually compelled the defendant to furnish testimony against himself," 192 U.S., at 598, 24 S.Ct., at 875, adhered to the common-law rule that a trial court must not inquire, on Fourth Amendment grounds, into the method by which otherwise competent evidence was acquired. See, E. g., Commonwealth v. Dana, 43 Mass. 329 (1841).
20
See Terry v. Ohio, 392 U.S. 1, 12-13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968); Weeks v. United States, 232 U.S. 383, 391-392, 394, 34 S.Ct. 341, 343-344, 345, 58 L.Ed. 652 (1914); Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 569, 72 L.Ed. 944 (1928) (Holmes, J., dissenting); Id., At 484, 48 S.Ct. at 574 (Brandeis, J., dissenting).
21
See 367 U.S., at 656, 81 S.Ct., at 1692 (prevention of introduction of evidence where introduction is "tantamount" to a coerced confession); Id., at 658, 81 S.Ct. at 1693 (deterrence of Fourth Amendment violations); Id., at 659, 81 S.Ct. at 1693 (preservation of judicial integrity).
Only four Justices adopted the view that the Fourth Amendment itself requires the exclusion of unconstitutionally seized evidence in state criminal trials. See Id., at 656, 81 S.Ct., at 1692; Id., at 666, 81 S.Ct., at 1697 (Douglas, J., concurring). Mr. Justice Black adhered to his view that the Fourth Amendment, standing alone, was not sufficient, see Wolf v. Colorado, 338 U.S. 25, 39, 69 S.Ct. 1359, 1367, 93 L.Ed. 178 (1949) (concurring opinion), but concluded that, when the Fourth Amendment is considered in conjunction with the Fifth Amendment ban against compelled self-incrimination, a constitutional basis emerges for requiring exclusion. 367 U.S., at 661, 81 S.Ct., at 1694 (concurring opinion). See n. 19, Supra.
22
See Monaghan, Foreword: Constitutional Common Law, 89 Harv.L.Rev. 1, 5-6, and n. 33 (1975).
23
As we recognized last Term, judicial integrity is "not offended if law enforcement officials reasonably believed in good faith that their conduct was in accordance with the law even if decisions subsequent to the search and seizure have held that conduct of the type engaged in by the law enforcement officials is not permitted by the Constitution." United States v. Peltier, 422 U.S. 531, 538, 95 S.Ct. 2313, 2317, 45 L.Ed.2d 374 (1975) (emphasis omitted).
24
As Professor Amsterdam has observed:
"The rule is unsupportable as reparation or compensatory dispensation to the injured criminal; its sole rational justification is the experience of its indispensability in 'exert(ing) general legal pressures to secure obedience to the Fourth Amendment on the part of . . . law-enforcing officers.' As it serves this function, the rule is a needed, but grud(g)ingly taken, medicament; no more should be swallowed than is needed to combat the disease. Granted that so many criminals must go free as will deter the constables from blundering, pursuance of this policy of liberation beyond the confines of necessity inflicts gratuitous harm on the public interest . . . ." Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev. 378, 388-389 (1964) (footnotes omitted).
25
See generally M. Frankel, The Search For Truth An Umpireal View, 31st Annual Benjamin N. Cardozo Lecture, Association of the Bar of the City of New York, Dec. 16, 1974.
26
Cases addressing the question whether search-and-seizure holdings should be applied retroactively also focused on the deterrent purpose served by the exclusionary rule, consistently with the balancing analysis applied generally in the exclusionary rule context. See Desist v. United States, 394 U.S. 244, 249-251, 253-254, and n. 21, 89 S.Ct. 1030, 1033-34, 1035-1036, 22 L.Ed.2d 248 (1969); Linkletter v. Walker, 381 U.S. 618, 636-637, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601 (1965). Cf. Fuller v. Alaska, 393 U.S. 80, 81, 89 S.Ct. 61, 62, 21 L.Ed.2d 212 (1968). The "attenuation-of-the-taint" doctrine also is consistent with the balancing approach. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S., at 491-492, 83 S.Ct., at 419; Amsterdam, Supra, n. 24, at 389-390.
27
See, e. g., Irvine v. California, 347 U.S. 128, 136, 74 S.Ct. 381, 384, 98 L.Ed. 561 (1954); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 91 S.Ct. 1999, 2012, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting); People v. Defore, 242 N.Y. 13, 150 N.E. 585 (1926) (Cardozo, J.); 8 J. Wigmore, Evidence § 2184a, pp. 51-52 (McNaughton ed. 1961); Amsterdam, Supra, n. 24, at 388-391; Friendly, Supra, n. 13, at 161; Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 736-754 (1970), and sources cited therein; Paulsen, The Exclusionary Rule and Misconduct by the Police, 52 J.Crim.L.C. & P.S. 255, 256 (1961); Wright, Must the Criminal Go Free If the Constable Blunders?, 50 Tex.L.Rev. 736 (1972).
28
See address by Justice Schaefer of the Supreme Court of Illinois, Is the Adversary System Working in Optimal Fashion?, delivered at the National Conference on the Causes of Popular Dissatisfaction With the Administration of Justice, pp. 8-9, Apr. 8, 1976; cf. Frankel, Supra, n. 25.
29
Many of the proposals for modification of the scope of the exclusionary rule recognize at least implicitly the role of proportionality in the criminal justice system and the potential value of establishing a direct relationship between the nature of the violation and the decision whether to invoke the rule. See ALI, Model Code of Pre-arraignment Procedure, § 290.2, pp. 181-183 (1975) ("substantial violations"); H. Friendly, Benchmarks 260-262 (1967) (even at trial, exclusion should be limited to "the fruit of activity intentionally or flagrantly illegal"); 8 Wigmore, Supra, n. 27, at 52-53. See n. 17, Supra.
30
In a different context, Dallin H. Oaks has observed:
"I am criticizing, not our concern with procedures, but our preoccupation, in which we may lose sight of the fact that our procedures are not the ultimate goals of our legal system. Our goals are truth and justice, and procedures are but means to these ends. . . .
"Truth and justice are ultimate values, so understood by our people, and the law and the legal profession will not be worthy of public respect and loyalty if we allow our attention to be diverted from these goals." Ethics, Morality and Professional Responsibility, 1975 B.Y.U.L.Rev. 591, 596.
31
Resort to habeas corpus, especially for purposes other than to assure that no innocent person suffers an unconstitutional loss of liberty, results in serious intrusions on values important to our system of government. They include "(i) the most effective utilization of limited judicial resources, (ii) the necessity of finality in criminal trials, (iii) the minimization of friction between our federal and state systems of justice, and (iv) the maintenance of the constitutional balance upon which the doctrine of federalism is founded." Schneckloth v. Bustamonte, 412 U.S., at 259, 93 S.Ct., at 2064. (Powell, J., concurring). See also Kaufman v. United States, 394 U.S., at 231, 89 S.Ct., at 1076. (Black, J., dissenting); Friendly, Supra, n. 13.
We nevertheless afford broad habeas corpus relief, recognizing the need in a free society for an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty. The Court in Fay v. Noia, described habeas corpus as a remedy for "whatever society deems to be intolerable restraints," and recognized that those to whom the writ should be granted "are persons whom society has grievously wronged." 372 U.S., at 401, 441, 83 S.Ct., at 829, 850. But in the case of a typical Fourth Amendment claim, asserted on collateral attack, a convicted defendant is usually asking society to redetermine an issue that has no bearing on the basic justice of his incarceration.
32
The efficacy of the exclusionary rule has long been the subject of sharp debate. Until recently, scholarly empirical research was unavailable. Elkins v. United States, 364 U.S., at 218, 80 S.Ct., at 1444. And, the evidence derived from recent empirical research is still inconclusive. Compare, e. g., Oaks, Supra, n. 27; Spiotto, Search and Seizure: An Empirical Study of the Exclusionary Rule and Its Alternatives, 2 J.Legal Studies 243 (1973), with, e. g., Canon, Is the Exclusionary Rule in Failing Health?, Some New Data and a Plea Against a Precipitous Conclusion, 62 Ky.L.J. 681 (1974). See United States v. Janis, 428 U.S. 433, at 450-452, n. 22, 96 S.Ct. 3021, at 3030-3031, 49 L.Ed.2d 1046; 96 S.Ct. 3021, 3030, 48 L.Ed.2d —- (1976); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 475 n. 593 (1974); Comment, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v. Calandra, 69 Nw.U.L.Rev. 740 (1974).
33
See Oaks, Supra, n. 27, at 756.
34
"As the exclusionary rule is applied time after time, it seems that its deterrent efficacy at some stage reaches a point of diminishing returns, and beyond that point its continued application is a public nuisance." Amsterdam, Supra, n. 24, at 389.
35
The policy arguments that respondents marshal in support of the view that federal habeas corpus review is necessary to effectuate the Fourth Amendment stem from a basic mistrust of the state courts as fair and competent forums for the adjudication of federal constitutional rights. The argument is that state courts cannot be trusted to effectuate Fourth Amendment values through fair application of the rule, and the oversight jurisdiction of this Court on certiorari is an inadequate safeguard. The principal rationale for this view emphasizes the broad differences in the respective institutional settings within which federal judges and state judges operate. Despite differences in institutional environment and the unsympathetic attitude to federal constitutional claims of some state judges in years past, we are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States. State courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law. Martin v. Hunter's Lessee, 1 Wheat. 304, 341-344, 4 L.Ed. 97 (1816). Moreover, the argument that federal judges are more expert in applying federal constitutional law is especially unpersuasive in the context of search-and-seizure claims, since they are dealt with on a daily basis by trial level judges in both systems. In sum, there is "no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned with respect to the (consideration of Fourth Amendment claims) than his neighbor in the state courthouse." Bator, Supra, n. 7, at 509.
36
Cf. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).
37
Mr. Justice BRENNAN'S dissent characterizes the Court's opinion as laying the groundwork for a "drastic withdrawal of federal habeas jurisdiction, if not for all grounds . . ., then at least (for many) . . . ." Post, at 517. It refers variously to our opinion as a "novel reinterpretation of the habeas statutes," Post, at 515; as a "harbinger of future eviscerations of the habeas statutes," Post, at 516; as "rewrit(ing) Congress' jurisdictional statutes . . . and (bar-
ring) access to federal courts by state prisoners with constitutional claims distasteful to a majority" of the Court, Post, at 522; and as a "denigration of constitutional guarantees (that) must appall citizens taught to expect judicial respect" of constitutional rights, Post, at 523.
With all respect, the hyperbole of the dissenting opinion is misdirected. Our decision today is Not concerned with the scope of the habeas corpus statute as authority for litigating constitutional claims generally. We do reaffirm that the exclusionary rule is a judicially created remedy rather than a personal constitutional right, see Supra, at 486, and we emphasize the minimal utility of the rule when sought to be applied to Fourth Amendment claims in a habeas corpus proceeding. As Mr. Justice Black recognized in this context, "ordinarily the evidence seized can in no way have been rendered untrustworthy . . . and indeed often . . . alone establishes beyond virtually any shadow of a doubt that the defendant is guilty." Kaufman v. United States, 394 U.S., at 237, 89 S.Ct., at 1079 (dissenting opinion). In sum, we hold only that a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review. Our decision does not mean that the federal court lacks jurisdiction over such a claim, but only that the application of the rule is limited to cases in which there has been both such a showing and a Fourth Amendment violation.
38
See n. 31, Supra. Respondents contend that since they filed petitions for federal habeas corpus rather than seeking direct review by this Court through an application for a writ of certiorari, and since the time to apply for certiorari has now passed, any diminution in their ability to obtain habeas corpus relief on the ground evidence obtained in an unconstitutional search or seizure was introduced at their trials should be prospective. Cf. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 422-423, 84 S.Ct. 461, 468, 11 L.Ed.2d 440 (1964). We reject these contentions. Although not required to do so under the Court's prior decisions, see Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), respondents were, of course, free to file a timely petition for certiorari prior to seeking federal habeas corpus relief.
1
I say "ostensibly" secured both because it is clear that the Court has yet to make its final frontal assault on the exclusionary rule, and because the Court has recently moved in the direction of holding that the Fourth Amendment has no substantive content whatsoever. See, E. g., United States v. Martinez-Fuerte, 428 U.S. 543, 567-569, 96 S.Ct. 3074, 3087-3088, 49 L.Ed.2d 1116 (Brennan, J., dissenting), and cases cited therein.
2
Title 28 U.S.C. § 2254 provides:
"§ 2254. State custody; remedies in Federal courts.
"(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
"(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
"(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning
of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
"(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit
"(1) that the merits of the factual dispute were not resolved in the State court hearing;
"(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
"(3) that the material facts were not adequately developed at the State court hearing;
"(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
"(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
"(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
"(7) that the applicant was otherwise denied due process of law in the State court proceeding;
"(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
"And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made,
unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.
"(e) If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State court's determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State court's factual determination.
"(f) A copy of the official records of the State court, duly certified by the clerk of such court to be a true and correct copy of a finding, judicial opinion or other reliable written indicia showing such a factual determination by the State court shall be admissible in the Federal court proceeding."
3
Title 28 U.S.C. § 2243 provides:
"s 2243. Issuance of writ; return; hearing; decision.
"A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.
"The writ, or order to show cause shall be directed to the person having custody of the person detained. It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed.
"The person to whom the writ or order is directed shall make a return certifying the true cause of the detention.
"When the writ or order is returned a day shall be set for hearing, not more than five days after the return unless for good cause additional time is allowed.
"Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.
"The applicant or the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts.
"The return and all suggestions made against it may be amended, by leave of court, before or after being filed.
"The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require."
4
See also, E. g., ante, at 486 ("The decision in Kaufman (V. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969),) is premised on the view that implementation of the Fourth Amendment also requires the consideration of search-and-seizure claims upon collateral review of state convictions"); Ante, at 489 ("The answer (to the question whether Fourth Amendment claims may be raised by state prisoners in federal habeas corpus proceedings) is to be found by weighing the utility of the exclusionary rule against the costs of extending it to collateral review of Fourth Amendment claims"); Ante, at 493 ("(T)he additional contribution, if any, of the consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the costs. . . . The view that the deterrence of Fourth Amendment violations would be furthered rests on the dubious assumption that law enforcement authorities would fear that federal habeas review might reveal flaws in a search or seizure that went undetected at trial and on appeal"); Ante, at 494-495 ("In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal and the substantial societal costs of application of the rule persists with special force").
5
To the extent the Court is rendering a constitutional holding, there is obviously no distinction between claims brought by state prisoners under 28 U.S.C. § 2254 and those brought by federal prisoners under 28 U.S.C. § 2255. Thus, the Court overrules not only a long line of cases concerning availability of habeas relief for state prisoners, but also a similarly inveterate line of cases concerning availability of counterpart § 2255 relief for federal prisoners.
6
Mr. Justice Black, dissenting in Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), argued that in light of his view of the purposes of the exclusionary rule Fourth Amendment claims should not, as a matter of statutory construction, be cognizable on federal habeas. However, he never made the suggestion, apparently embraced by the Court today, that such claims cannot as a constitutional matter be entertained on habeas jurisdiction, even though Congress fashioned that jurisdiction at least in part to compensate for the inadequacies inherent in our certiorari jurisdiction on direct review. Cf. Ante, at 481 n. 15, and 490. Indeed, Kaufman did not ignore the dissenting Justices' arguments; rather, it noted that habeas jurisdiction, apart from any effect on police behavior, serves the independent function of "insur(ing) the integrity of proceedings at and before trial where constitutional rights are at stake." 394 U.S. at 225, 89 S.Ct. at 1073. See also Infra, at 519-522. As to the argument that our prior cases do not resolve the issue decided today because "only in the most exceptional cases will we consider issues not raised in the petition," see Ante, at 481 n. 15, that claim is only valid to the extent the issue is one of construing congressional intent as to when, with respect to cases properly within the district court's power to grant relief, habeas relief should nevertheless be denied as a matter of discretion. But to the extent a person against whom unconstitutionally seized evidence was admitted at trial after a full and fair hearing is not "in custody in violation of the Constitution," there would be no jurisdiction even to entertain a habeas petition, see n. 2, Supra, and such subject-matter-jurisdiction questions are always open and must be resolved at any stage of federal litigation. See, e. g., Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Fed.Rule Civ.Proc. 12(h). It borders on the incredible to suggest that so many Justices for so long merely "assumed" the answer to such a basic jurisdictional question.
7
See also 414 U.S., at 351, 94 S.Ct. at 621, noting "inadmissibility of the illegally seized evidence in a subsequent criminal prosecution of the search victim."
8
Only once does the Court advert to any temporal distinction between direct review and collateral review as a possible reason for precluding the raising of Fourth Amendment claims during the former and not during the latter proceedings. See Ante, at 493 (arguing that deterrence would not be "enhanced" by the risk "that a conviction obtained in state court and affirmed on direct review might be overturned in collateral proceedings often occurring years after the incarceration of the defendant"). Of course, it is difficult to see how the Court could constitutionalize any such asserted temporal distinctions, particularly in light of the differential speed with which criminal cases proceed even on direct appeal.
9
It is unnecessary here to expand upon my reasons for disagreement, which are stated fully in my dissents in United States v. Calandra, 414 U.S., at 355-367, 94 S.Ct., at 615-629, and United States v. Peltier, 422 U.S. 531, 550-562, 95 S.Ct. 2313, 2324-30, 45 L.Ed.2d 374 (1975).
10
The failure to confront this fact forthrightly is obviously a core defect in the Court's analysis. For to the extent Congress has accorded the federal district courts a role in our constitutional scheme functionally equivalent to that of the Supreme Court with respect to review of state-court resolutions of federal constitutional claims, it is evident that the Court's direct/collateral review distinction for constitutional purposes simply collapses. Indeed, logically extended, the Court's analysis, which basically turns on the fact that law enforcement officials cannot anticipate a second court's finding constitutional errors after one court has fully and fairly adjudicated the claim and found it to be meritless, would preclude any Supreme Court review on direct appeal or even state appellate review if the trial court fairly addressed the Fourth Amendment claim on the merits. The proposition is certainly frivolous if Mapp is constitutionally grounded; yet such is the essential thrust of the Court's view that the unconstitutional admission of evidence is tolerable merely because police officials cannot be deterred from unconstitutional conduct by the possibility that a favorable "admission" decision would be followed by an unfavorable "exclusion" decision.
The Court's arguments respecting the cost/benefit analysis of applying the exclusionary rule on collateral attack also have no merit. For all of the "costs" of applying the exclusionary rule on habeas Should already have been incurred at the trial or on direct review if the state court had not misapplied federal constitutional principles. As such, these "costs" were evaluated and deemed to be outweighed when the exclusionary rule was fashioned. The only proper question on habeas is whether federal courts, acting under congressional directive to have the last say as to enforcement of federal constitutional principles, are to permit the States free enjoyment of the fruits of a conviction which by definition were only obtained through violations of the Constitution as interpreted in Mapp. And as to the question whether any "educative" function is served by such habeas review, see Ante, at 493, today's decision will certainly provide a lesson that, tragically for an individual's
constitutional rights, will not be lost on state courts. See Infra, at 530-533.
Another line of analysis exposes the fallacy of treating today's holding as a constitutional decision. Constitutionally, no barrier precludes a state defendant from immediately seeking a federal court's injunction against any state use of unconstitutionally seized evidence against him at trial. However, equitable principles have operated to foreclose cutting short the normal Initial adjudication of such constitutional defenses in the course of a criminal prosecution, Dombrowski v. Pfister, 380 U.S. 479, 485 n. 3, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965), subject to ultimate federal review either on direct review or collaterally through habeas. See also, E. g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Moreover, considerations of comity, now statutorily codified as the exhaustion requirement of § 2254, and not lack of power, dictate that federal habeas review be delayed pending the initial state-court determination. But delay only was the price, "else a rule of timing would become a rule circumscribing the power of the federal courts on habeas, in defiance of unmistakable congressional intent." Fay v. Noia, 372 U.S. 391, 420, 83 S.Ct. 822, 838, 9 L.Ed.2d 837 (1963); see Id., at 417-426, 83 S.Ct. at 837-842. The Court today, however, converts this doctrine dictating the timing of federal review into a doctrine Precluding federal review, see Francis v. Henderson, 425 U.S. 536, 542, 96 S.Ct. 1708, 1712, 48 L.Ed.2d 149 (1976) (Brennan, J., dissenting); such action is in keeping with the regrettable recent trend of barring the federal courthouse door to individuals with meritorious claims. See, E. g., Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). Although the federal courts could have been the forum for the initial "opportunity for a full and fair hearing" of Fourth Amendment claims of state prisoners that the Court finds constitutionally sufficient, nonconstitutional concerns dictated temporary abstention; but having so abstained, federal courts are now ousted by this Court from ever determining the claims, since the courts to which they initially deferred are all that this Court deems necessary for protecting rights essential to preservation of the Fourth Amendment. Such hostility to federal jurisdiction to redress violations of rights secured by the Federal Constitution, despite congressional conferral of that jurisdiction, is profoundly disturbing.
11
In arguing in the Court's "deterrence" idiom, I emphasize that I am accepting the Court's assumptions concerning the purposes of the exclusionary rule only to demonstrate that, on its own premises, today's decision is unsupportable.
12
For proof that my fears concerning the precedential use to which today's opinion will be put are not groundless, see, e. g., Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), and Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), which illustrate the Court's willingness to construe the habeas statutes so as to cabin the scope of habeas relief for criminal defendants.
13
Others might be claims of official surveillance of attorney-client communications, government acquisition of evidence through unconscionable means, see, e. g., Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), denial of the right to a speedy trial, government administration of a "truth serum," see Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), denial of the right to jury trial, see Ludwig v. Massachusetts, 427 U.S. 618, 627 n. 3, 96 S.Ct. 2781, 2786, 49 L.Ed.2d 732 (1976), or the obtaining of convictions under statutes that contravene First Amendment rights when a properly drawn statute could have been applied to the particular defendant's conduct.
14
The overruling of Lefkowitz v. Newsome, decided only last Term is particularly ironic. That case held that a state defendant could file a federal habeas corpus petition asserting Fourth Amendment claims, despite a subsequent guilty plea, when the State provided for appellate review of those claims. Three Justices dissented and would have held, as a statutory matter, that Fourth Amendment claims are not cognizable on federal habeas, but none suggested the "constitutional" thesis embraced by the Court as the ostensible Ratio decidendi for today's cases.
Although the Court does not expressly overrule Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), and its progeny involving collateral review of Fourth Amendment claims of federal prisoners (indeed, the Court accomplishes today's results without expressly overruling or distinguishing Any of our diametrically contrary precedents), Kaufman obviously does not survive. This tactic has become familiar in earlier decisions this Term. See e. g., Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976).
15
My Brother WHITE's hypothesis of two confederates in crime, see Post, at 536-537, fully demonstrates the type of discrimination that Congress clearly sought to avoid if, out of the full universe of constitutional rights, certain rights could be vindicated only by resort to this Court's certiorari jurisdiction.
16
The Court also notes that "attention . . . (is) diverted" when trial courts address exclusionary rule issues, Ante, at 490, and with the result that application of the rule "often frees the guilty." Ibid. Of course, these "arguments" are true with respect to every constitutional guarantee governing administration of the criminal justice system.
17
"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandies, J., dissenting). See also Id., at 483, 485, 48 S.Ct. at 574, 575.
"We are duly mindful of the reliance that society must place for achieving law and order upon the enforcing agencies of the criminal law. But insistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of short-cut methods in law enforcement impairs its enduring effectiveness." Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1197, 2 L.Ed.2d 1332 (1958). See also Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886); Weeks v. United States, 232 U.S. 383, 392-394, 34 S.Ct. 341, 343-44, 58 L.Ed. 652 (1914).
The Court asserts that "the hyperbole of the dissenting opinion is misdirected," Ante, at 495 n. 37, but I take seriously this Court's continuing incursions on constitutionally guaranteed rights. "(I)llegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. . . . It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v. United States, supra, 116 U.S. at 635, 6 S.Ct. at 535.
18
These considerations were powerfully articulated in Brown v. Allen, 344 U.S. 443, 491-494, 73 S.Ct. 397, 438-440, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.). Cf. also Fay v. Noia, 372 U.S., at 432-433, 83 S.Ct., at 845; England v. Louisiana State board of Medical Examiners, 375 U.S. 411, 415-417, 84 S.Ct. 461, 464-65, 11 L.Ed.2d 440 (1964).
19
See Brown v. Allen, 344 U.S., at 497-499, 73 S.Ct., at 441-42 (opinion of Frankfurter, J.). "The meritorious claims are few, but our procedures must ensure that those few claims are not stifled by undiscriminating generalities." Id., at 498, 73 S.Ct. at 442.
20
The Nebraska Supreme Court fell into patent error in citing Whiteley for the proposition that "the affidavit may be supplemented by testimony of additional evidence known to the police." State v. Rice, 188 Neb. 728, 739, 199 N.W.2d 480, 488 (1972).
| 01
|
429 U.S. 6
97 S.Ct. 18
50 L.Ed.2d 8
UNITED STATESv.Frank Daniel DIETER.
No. 75-1547.
Oct. 12, 1976.
PER CURIAM.
1
The respondent was indicted in early 1973 for violating 21 U.S.C. § 841(a) after a search at a permanent immigration traffic checkpoint in New Mexico of a vehicle in which he was a passenger had turned up a substantial quantity of marihuana. His motion to suppress the marihuana was initially denied by the District Court. Thereafter, this Court ruled in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), that a warrantless roving patrol search of a vehicle conducted without probable cause on a road removed from the border, violated the Fourth Amendment. The Court of Appeals for the Tenth Circuit subsequently ruled in United States v. King, 485 F.2d 353 (10 Cir. 1973), and United States v. Maddox, 485 F.2d 361 (10 Cir. 1973), that Almeida-Sanchez should be applied retroactively.1 The District Court then reconsidered the respondent's motion to suppress, and on October 4, 1974, dismissed the indictment.
2
On October 16, 1974, the Government filed a "Motion to Set Aside (the) Order of Dismissal" on the ground that the facts in this case were materially different from those in Almeida-Sanchez and that "the Order dismissing the case was entered through inadvertence." On November 6, 1974, the District Court denied the motion on the ground that it had "no authority or jurisdiction" to set aside the order. On November 7, 1974, the Government filed a notice of appeal.
3
(1) The Court of Appeals dismissed the appeal, holding that it was untimely because the notice of appeal had not been filed until 34 days after entry of the October 4 order and hence fell outside the 30-day limitation period for a Government appeal from an order dismissing an indictment.2 The appellate court held that the October 4 order was final for purposes of appeal, notwithstanding the Government's October 16 motion to set aside that order. In denying the Government's petition for rehearing and suggestion for rehearing en banc, the court recognized that in United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964), decided at a time when a Government appeal from an order dismissing an indictment was taken directly to this Court rather than to a court of appeals, we held that the 30-day limitation period runs from the denial of a timely petition in the District Court for rehearing, rather than from the date of the order itself. The Court of Appeals reasoned, however, that Healy did not control because the post-dismissal motion there involved "was directed squarely at an alleged error of law committed by the trial court," whereas in this case the Government's motion "to set aside on the grounds of mistake or inadvertence was an entirely different species of pleading . . . ." App. to Pet. for Cert. 4A.
4
(2) The Court of Appeals misconceived the basis of our decision in Healy. We noted there that the consistent practice in civil and criminal cases alike has been to treat timely petitions for rehearing as rendering the original judgment nonfinal for purposes of appeal for as long as the petition is pending. 376 U.S., at 78-79, 84 S.Ct., at 555-56.3 To have held otherwise might have prolonged litigation and unnecessarily burdened this Court, since plenary consideration of an issue by an appellate court ordinarily requires more time than is required for disposition by a trial court of a petition for rehearing. Id., at 80, 84 S.Ct., at 556. The fact that appeals are now routed to the courts of appeals does not affect the wisdom of giving district courts the opportunity promptly to correct their own alleged errors, and we must likewise be wary of imposing added and unnecessary burdens on the courts of appeals. These considerations fully apply whether the issue presented on appeal is termed one of fact or of law, and the Court of Appeals' law/fact distinction assuming such a distinction can be clearly drawn for these purposes finds no support in Healy. It is true that the Government's post-dismissal motion was not captioned a "petition for rehearing," but there can be no doubt that in purpose and effect it was precisely that, asking the District Court to "reconsider (a) question decided in the case" in order to effect an "alteration of the rights adjudicated." Department of Banking v. Pink, 317 U.S. 264, 266, 63 S.Ct. 233, 234, 87 L.Ed. 254 (1942).
5
The motion of respondent for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings.
6
It is so ordered.
1
That view was later repudiated by this Court in United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975).
2
Title 18 U.S.C. § 3731 provides in pertinent part that "(i)n a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts," and that "(t)he appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered . . .." Federal Rule App. Proc. 4(b) provides in pertinent part:
"When an appeal by the government is authorized by statute, the notice of appeal shall be filed in the district court within 30 days after the entry of the judgment or order appealed from. A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket."
3
The Court of Appeals' concern with the lack of a statute or rule expressly authorizing treatment of a post-dismissal motion as suspending the limitation period ignores our having grounded our decision in Healy, not on any express authorization (which was similarly lacking in Healy ), but rather on "traditional and virtually unquestioned practice." 376 U.S., at 79, 84 S.Ct., at 556.
| 01
|
429 U.S. 1
97 S.Ct. 24
50 L.Ed.2d 1
UNITED STATESv.Kenneth Lee MORRISON.
No. 75-1534.
Oct. 12, 1976.
PER CURIAM.
1
On September 27, 1972, a car driven by respondent was stopped by Border Patrol agents at the permanent immigration traffic checkpoint near Truth or Consequences, N. M. An agent detected the odor of marihuana; the car was then searched, disclosing a large quantity of marihuana.
2
Respondent was charged with possessing marihuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He filed a pretrial motion to suppress the marihuana on the ground that the search of his car violated the Fourth Amendment. He waived his right to a jury trial. The motion to suppress was heard during the trial on the merits, and the District Court denied the motion to suppress and found the respondent guilty as charged.
3
Approximately three months later, we held that a warrantless roving patrol search of vehicles for aliens, conducted without probable cause at a point removed from the border or its functional equivalent, violated the Fourth Amendment. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). The Court of Appeals for the Tenth Circuit thereafter held that Almeida-Sanchez should be applied retroactively and that its rationale encompasses searches conducted at fixed traffic checkpoints. United States v. King, 485 F.2d 353 (1973); United States v. Maddox, 485 F.2d 361 (1973).
4
Respondent's original motion to suppress was then reconsidered by the District Court1 in the light of King, supra, and Maddox, supra, and the following order was entered:
5
"(I)t is hereby
6
"ORDERED that the marihuana which is the subject matter of the charge herein shall be and is hereby suppressed.
7
"The Court will take appropriate action consistent with this Order if this Order is not appealed by the United States of America or if this Order is affirmed on appeal."
8
Thereupon the Government appealed pursuant to 18 U.S.C. § 3731.2 While this appeal was pending in the Court of Appeals, we held in Bowen v. United States, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641 (1975); United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), that Almeida-Sanchez was not to be applied retroactively to Border Patrol searches conducted prior to June 21, 1973. After the Government moved for summary reversal of the District Court's suppression order, the Court of Appeals, without benefit of briefing or oral argument, dismissed the Government's appeal for lack of jurisdiction, finding that double jeopardy would bar a retrial. The court, citing United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), felt that double jeopardy would bar because further proceedings involving "the resolution of factual issues going to the elements of the offense charged . . ." would be required.
9
We cannot agree. In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), we held:
10
"(W)hen a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause." Id., at 352-353, 95 S.Ct., at 1026.
11
The holding in Wilson applies to the bench trial here, for, as we stated in United States v. Jenkins, supra :
12
"Since the Double Jeopardy Clause of the Fifth Amendment nowhere distinguishes between bench and jury trials, the principles given expression through that Clause apply to cases tried to a judge. . . .
13
"A general finding of guilt by a judge may be analogized to a verdict of 'guilty' returned by a jury." 420 U.S., at 365-366, 95 S.Ct., at 1011.
14
(1, 2) Thus the District Court's general finding of guilt here is for double jeopardy purposes the same as a jury verdict of guilty. The Government is therefore entitled to appeal the order suppressing the evidence, since success on that appeal would result in the reinstatement of the general finding of guilt, rather than in further factual proceedings relating to guilt or innocence. As in Wilson, there would then remain only the imposition of sentence and the entry of a judgment of conviction pursuant to Fed.Rule Crim.Proc. 32.
15
We grant the petition for certiorari, vacate the judgment of the Court of Appeals, and remand for further proceedings consistent with this opinion.
16
It is so ordered.
1
At that time, this case was still pending before the court for sentencing.
2
The Criminal Appeals Act provides in pertinent part:
"In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution."
| 01
|
50 L.Ed.2d 12
97 S.Ct. 22
429 U.S. 10
UNITED STATESv.Peter POMPONIO et al.
No. 75-1667.
Oct. 12, 1976.
Rehearing Denied Nov. 29, 1976. See 429 U.S. 987, 97 S.Ct. 510.
PER CURIAM.
1
After a jury trial, respondents were convicted of willfully filing false income tax returns in violation of 26 U.S.C. § 7206(1).1 Based on its reading of United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973), the Court of Appeals held that the jury was incorrectly instructed concerning willfulness, and remanded for a new trial. 528 F.2d 247 (1975). The United States petitioned for certiorari. We reverse.
2
The respondents were charged with falsifying tax returns in two principal ways: (1) they allegedly caused corporations they controlled to report payments to them as loans, when they knew the payments were really taxable dividends; and (2) they allegedly claimed partnership losses as deductions knowing that the losses were properly attributable to a corporation. Their defense was that these transactions were correctly reported, or at least that they thought so at the time.
3
The jury was instructed that respondents were not guilty of violating § 7206(1) unless they had signed the tax returns knowing them to be false,2 and had done so willfully. A willful act was defined in the instructions as one done "voluntarily and intentionally and with the specific intent to do something which the law forbids, that is to say with (the) bad purpose either to disobey or to disregard the law." Finally, the jury was instructed that "(g)ood motive alone is never a defense where the act done or omitted is a crime," and that consequently motive was irrelevant except as it bore on intent. The Court of Appeals held this final instruction improper because "the statute at hand requires a finding of a bad purpose or evil motive." 528 F.2d, at 249. In so holding, the Court of Appeals incorrectly assumed that the reference to an "evil motive" in United States v. Bishop, supra, and prior cases meant something more than the specific intent to violate the law described in the trial judge's instruction.
4
In Bishop we held that the term "willfully" has the same meaning in the misdemeanor and felony sections of the Revenue Code, and that it requires more than a showing of careless disregard for the truth.3 We did not, however, hold that the term requires proof of any motive other than an intentional violation of a known legal duty. We explained the meaning of willfulness in § 7206 and related statutes:
5
"The Court, in fact, has recognized that the word 'willfully' in these statutes generally connotes a voluntary, intentional violation of a known legal duty. It has formulated the requirement of willfulness as 'bad faith or evil intent,' (United States v.) Murdock, 290 U.S. (389,) 398, 54 S.Ct. (223), at 226 (78 L.Ed. 381), or 'evil motive and want of justification in view of all the financial circumstances of the taxpayer,' Spies (v. United States ), 317 U.S. (492,) 498, 63 S.Ct. (364), at 368 (87 L.Ed. 418), or knowledge that the taxpayer 'should have reported more income than he did.' Sansone (v. United States ), 380 U.S. (343,) 353, 85 S.Ct. (1004) at 1011 (13 L.Ed.2d 882). See James v. United States, 366 U.S. 213, 221, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961); McCarthy v. United States, 394 U.S. 459, 471, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)." 412 U.S., at 360, 93 S.Ct., at 2017.
6
Our references to other formulations of the standard did not modify the standard set forth in the first sentence of the quoted paragraph. On the contrary, as the other Courts of Appeals that have considered the question have recognized, willfulness in this context simply means a voluntary, intentional violation of a known legal duty. United States v. Pohlman, 522 F.2d 974, 977 (CA8 1975) (en banc), cert. denied, 423 U.S. 1049, 96 S.Ct. 776, 46 L.Ed.2d 638 (1976); United States v. McCorkle, 511 F.2d 482, 484-485 (CA7) (en banc), cert. denied, 423 U.S. 826, 96 S.Ct. 43, 46 L.Ed.2d 43 (1975); United States v. Greenlee, 517 F.2d 899, 904 (CA3), cert. denied, 423 U.S. 985, 96 S.Ct. 391, 46 L.Ed.2d 301 (1975); United States v. Hawk, 497 F.2d 365, 366-369 (CA9), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974). The trial judge in the instant case adequately instructed the jury on willfulness. An additional instruction on good faith was unnecessary.
7
As an alternative ground for ordering a new trial, the Court of Appeals held that respondents were entitled to instructions exonerating them if they believed that the payments to them were loans and that the losses belonged to the partnership, 528 F.2d, at 250. Our inspection of the record indicates that such instructions were given and that they were adequate.4
8
The respondents' other allegations of error which the Court of Appeals found it unnecessary to reach should be considered by that court in the first instance.
9
The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
10
It is so ordered.
1
Section 7206 provides in pertinent part
"Any person who
"(1) . . . Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter . . .
"shall be guilty of a felony . . . ."
2
We agree with the Court of Appeals that the instructions on this point were "full and complete." 528 F.2d 247, 249-250 (1975). The jury was told that the Government contended that respondents "couldn't claim this (the partnership losses) as a deduction . . . because by so doing they would know that they were filing a false report of their total gross income." Later the jury was instructed that, if they found the loans were incorrectly reported, they must also find that the return was "made willfully and with the specific intent and knowledge at the time they made it that it was in fact a false return." In explaining intent, the trial judge said that "(t)o establish the specific intent the Government must prove that these defendants knowingly did the acts, that is, filing these returns, knowing that they were false, purposely intending to violate the law." The jury was told to "bear in mind the sole charge that you have here, and that is the violation of 7206, the willful making of the false return, and subscribing to it under perjury, knowing it not to be true and (sic ) to all material respects, and that and that alone."
3
The Court of Appeals in Bishop held that the evidence under the misdemeanor statute "need only show unreasonable, capricious, or careless disregard for the truth or falsity of income tax returns filed." 455 F.2d 612, 615 (CA9 1972). This Court rejected the view that this lesser degree of culpability was required for a violation of the misdemeanor statute, and held on the contrary that "Congress used the word 'willfully' to describe a constant rather than a variable in the tax penalty formula." 412 U.S., at 359-360, 93 S.Ct. at 2017.
4
The instructions set forth in n. 2, supra, by requiring knowledge that the returns falsely reported the transactions, implicitly required knowledge of the true nature of the transactions. In addition, the jury was instructed with respect to the loans that "if you do find that they were not bona fide loans then you must next determine whether or not the defendants knew at the time they were withdrawing this money that it was not a loan . . . . In other words, you should determine whether they knew that, and as I have told you, that is an essential element." With respect to the partnership losses, the jury was told that the Government claimed that respondents "knew that they couldn't transfer (a certain asset) to a partnership, and, therefore, when they couldn't transfer it they couldn't take the benefits of any losses sustained by the partnership in question . . . ."
| 01
|
429 U.S. 14
97 S.Ct. 20
50 L.Ed.2d 17
UNITED STATESv.Nelson E. "Buck" SANFORD et al.
No. 75-1867.
Oct. 12, 1976.
PER CURIAM.
1
Respondents were indicted for illegal game hunting in Yellowstone National Park. A jury trial in the United States District Court for the District of Montana resulted in a hung jury, and the District Court declared a mistrial. Four months later, while the Government was preparing to retry them, respondents moved to dismiss the indictment. The District Court, agreeing that the Government had consented to the activities which formed the basis of the indictment, dismissed it. The Government's appeal pursuant to the Criminal Appeals Act, 18 U.S.C. § 3731,1 was dismissed by the Court of Appeals because that court thought retrial was barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The Government petitioned for certiorari, and we vacated the judgment of the Court of Appeals and remanded for further consideration in the light of our intervening decision in Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). 421 U.S. 996, 95 S.Ct. 2392, 44 L.Ed.2d 663 (1975).
2
On remand, the Court of Appeals, considering the trilogy of Serfass, supra, United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), and United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), adhered to its prior determination. The Government now seeks certiorari from that ruling.
3
The reasoning of the Court of Appeals is best summarized by this language from its opinion:
4
"Here appellees have undergone trial. There is no question but that jeopardy has attached. That being so, and since the proceedings in the district court have ended in appellees' favor and the consequences of a reversal in favor of the Government would be that appellees must be tried again, we conclude that they would, on retrial, be placed twice in jeopardy." 536 F.2d 871, 872 (CA9 1976).
5
(1-3) We agree with the Court of Appeals that jeopardy attached at the time of the empaneling of the jury for the first trial of respondents. But we do not agree with that court's conclusion that by reason of the sequence of events in the District Court the Government would be barred by the Double Jeopardy Clause from retrying respondents. The trial of respondents on the indictment terminated, not in their favor, but in a mistrial declared, sua sponte, by the District Court. Where the trial is terminated in this manner, the classical test for determining whether the defendants may be retried without violating the Double Jeopardy Clause is stated in Mr. Justice Story's opinion for this Court in United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824):
6
"We are of opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defence. We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated."
7
The Government's right to retry the defendant, after a mistrial, in the face of his claim of double jeopardy is generally2 governed by the test laid down in Perez, supra. The situation of a hung jury presented here is precisely the situation that was presented in Perez, supra, and therefore the Double Jeopardy Clause does not bar retrial of these respondents on the indictment which had been returned against them.
8
The District Court's dismissal of the indictment occurred several months after the first trial had ended in a mistrial, but before the retrial of respondents had begun. This case is, therefore, governed by Serfass v. United States, supra, in which we held that a pretrial order of the District Court dismissing an indictment charging refusal to submit to induction into the Armed Forces was appealable under 18 U.S.C. § 3731. The dismissal in this case, like that in Serfass, was prior to a trial that the Government had a right to prosecute and that the defendant was required to defend. Since in such cases a trial following the Government's successful appeal of a dismissal is not barred by double jeopardy, an appeal from the dismissal is authorized by 18 U.S.C. § 3731.
9
The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
10
It is so ordered.
11
Mr. Justice BRENNAN and Mr. Justice MARSHALL dissent from summary reversal. They would set the case for oral argument.
1
The Criminal Appeals Act provides in pertinent part:
"In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution."
2
If the mistrial is declared at the behest of the defendant, the manifest necessity test does not apply. See United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).
| 01
|
429 U.S. 5
97 S.Ct. 26
50 L.Ed.2d 5
UNITED STATESv.Ralph Allan ROSE.
No. 75-1535.
Oct. 12, 1976.
PER CURIAM.
1
The operative facts herein are substantially identical to those in United States v. Morrison, 429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1. Respondent's car was stopped by Border Patrol agents; a search disclosed marihuana. Respondent lost a motion to suppress and was found guilty after a bench trial. Following this trial, but before sentencing, the District Court, relying upon our decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), granted respondent's motion to suppress. The Court of Appeals for the Tenth Circuit, as it did in Morrison, found the Government's appeal barred by double jeopardy.
2
In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), we held that double jeopardy would not bar a Government appeal if success on that appeal would result in the reinstatement of a verdict of guilty. The fact that the order of suppression here occurred after a general finding of guilt rendered by the court in a bench trial, rather than after a return of a verdict of guilty by a jury, is immaterial. Morrison, 429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1. Double jeopardy, therefore, does not bar an appeal by the Government.
3
We grant the motion to proceed in forma pauperis and the petition for certiorari, vacate the judgment of the Court of Appeals, and remand to that court for proceedings consistent herewith.
4
It is so ordered.
| 01
|
429 U.S. 17
97 S.Ct. 31
50 L.Ed.2d 21
STANDARD OIL CO. OF CALIFORNIAv.UNITED STATES.
No. 72-1251.
Oct. 18, 1976.
PER CURIAM.
1
Following an eight-day trial, the United States District Court for the Northern District of California enjoined movant from engaging in certain practices found to violate § 3 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 3. 362 F.Supp. 1331 (1973). The judgment was summarily affirmed by this Court. 412 U.S. 924, 93 S.Ct. 2750, 37 L.Ed.2d 152. Movant now seeks to have the judgment set aside on the basis of alleged misconduct by Government counsel and by a material witness who is now prosecuting a treble-damages action against movant. Preliminarily to filing a motion in the District Court pursuant to Fed.Rule Civ.Proc. 60(b) movant has filed a motion in this Court requesting that we recall our mandate1 and grant leave to proceed in the District Court. We hold that the District Court may entertain a Rule 60(b) motion without leave by this Court. We therefore deny the motion to recall our mandate, without prejudice to Standard Oil's right to proceed in the District Court.
2
We recognize that in the past both this Court and many Courts of Appeals have required appellate leave before the District Court could reopen a case which had been reviewed on appeal.2 The requirement derived from a belief that an appellate court's mandate bars the trial court from later disturbing the judgment entered in accordance with the mandate. See In re Potts, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994 (1897); Butcher & Sherred v. Welsh, 206 F.2d 259, 262 (CA3 1953), cert. denied, 346 U.S. 925, 74 S.Ct. 312, 98 L.Ed. 418 (1954); Home Indemnity Co. of New York v. O'Brien, 112 F.2d 387, 388 (CA6 1940). It has also been argued that the appellate-leave requirement protects the finality of the judgment and allows the appellate court to screen out frivolous Rule 60(b) motions. Tribble v. Bruin, 279 F.2d 424, 427-428 (CA4 1960); 7 J. Moore, Federal Practice P 60.30(2), p. 429 n. 27 (1975).
3
In our view, the arguments in favor of requiring appellate leave are unpersuasive. Like the original district court judgment, the appellate mandate relates to the record and issues then before the court, and does not purport to deal with possible later events. Hence, the district judge is not flouting the mandate by acting on the motion. See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2873, pp. 269-270 (1973). Cf. SEC v. Advance Growth Capital Corp., 539 F.2d 649, 650 (CA7 1976). Furthermore, the interest in finality is no more impaired in this situation than in any Rule 60(b) proceeding. Finally, we have confidence in the ability of the district courts to recognize frivolous Rule 60(b) motions. Indeed, the trial court "is in a much better position to pass upon the issues presented in a motion pursuant to Rule 60(b)," Wilkin v. Sunbeam Corp., 405 F.2d 165, 166 (CA10 1968). 409 U.S. 1126, 93 S.Ct. 940, 35 L.Ed.2d 258. Accord, Wilson Research Corp. v. Piolite Plastics Corp., 336 F.2d 303, 305 (CA1 1964); 11 Wright & Miller, supra, at 269.
4
The appellate-leave requirement adds to the delay and expense of litigation and also burdens the increasingly scarce time of the federal appellate courts. We see no reason to continue the existence of this "unnecessary and undesirable clog on the proceedings." S. C. Johnson & Son, Inc. v. Johnson, 175 F.2d 176, 184 (CA2 1949) (Clark, J., dissenting). We therefore deny the motion to recall because the District Court may take appropriate action without this Court's leave.
5
Mr. Justice WHITE took no part in the consideration or decision of this case.
1
It is technically incorrect to refer to our "mandate" because a copy of the judgment was issued in lieu of a mandate. See this court's Rule 59(3). Nevertheless, to avoid confusion with the District Court judgment, we will use the term "mandate" throughout this opinion.
2
This Court held that appellate leave was required in In re Potts, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994 (1897), and spoke approvingly of the practice in Hazel-Atlas Co. v. Hartford Co., 322 U.S. 238, 248, 64 S.Ct. 997, 1002, 88 L.Ed. 1250, 1256 (1944). The appellate-leave requirement has also been approved by several Court of Appeals decisions, in addition to those cited in the paragraph of the text accompanying this footnote. See Wilson Research Corp. v. Piolite Plastics Corp., 336 F.2d 303, 305 (CA1 1964); Hartman v. Lauchli, 304 F.2d 431, 432-433 (CA8 1962) (alternative holding). On the other hand, the Tenth Circuit has rejected the requirement, Kodekey Electronics, Inc. v. Mechanex Corp., 500 F.2d 110, 112-113 (1974); Wilkin v. Sunbeam Corp., 405 F.2d 165 (1968), and the Seventh Circuit has recently indicated that it now "would probably not go so far as to hold that appellate leave is necessary whenever relief is sought under Rule 60(b)(5)," SEC v. Advance Growth Capital Corp., 539 F.2d 649, 650 (1976).
| 89
|
429 U.S. 20
97 S.Ct. 29
50 L.Ed.2d 25
John David MOORE, Jr.v.UNITED STATES.
No. 75-1692.
Oct. 18, 1976.
PER CURIAM.
1
John David Moore, Jr., was convicted in a bench trial of possession of heroin with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). In an unpublished order, the Court of Appeals summarily affirmed the judgment of conviction.
2
In early January 1975, police officers received a tip from an informant that Moore and others were in possession of heroin at "Moore's apartment." The police obtained a search warrant and entered the apartment, where they found Moore lying face down near a coffee table in the living room. Also present in the apartment was a woman who was sitting on a couch in the same room. Bags containing heroin were found both on top of and beneath the coffee table, and they were seized along with various narcotics paraphernalia.
3
(1) At a consolidated hearing on Moore's motion to suppress evidence and on the merits, the prosecution adduced no admissible evidence showing that Moore was in possession of the heroin in the apartment in which he and the woman were found other than his proximity to the narcotics at the time the warrant was executed. Indeed, one police officer testified that he did not find "any indications of ownership of the apartment." In his closing argument on the merits, however, the prosecutor placed substantial emphasis on the out-of-court declaration of the unidentified informant:
4
"(A) confidential informant came to Detective Uribe and said, 'I have information or I have through personal observation, know that John David Moore resides at a certain apartment here in El Paso, Texas, and he is in possession of a certain amount of heroin.' "
5
In adjudging Moore guilty, the trial court found that he had been in close proximity to the seized heroin, that he was the tenant of the apartment in question, and that he had, therefore, been in possession of the contraband. In making these findings, the court expressly relied on the hearsay declaration of the informant:
6
"Information revealed by the confidential informant and relied upon in the preparation of the Affidavit disclosed that John David Moore was the occupant of Apartment # 60, Building # 7, Hill Country Apartments, 213 Argonaut, El Paso, Texas."
7
Defense counsel objected to the court's reliance upon hearsay evidence, but the judge refused to amend this finding except to add the phrase "at the time of the seizure" to the end of the sentence.
8
There can be no doubt that the informant's out-of-court declaration that the apartment in question was "Moore's apartment," either as related in the search warrant affidavit or as reiterated in live testimony by the police officers, was hearsay and thus inadmissible in evidence on the issue of Moore's guilt. Introduction of this testimony deprived Moore of the opportunity to cross-examine the informant as to exactly what he meant by "Moore's apartment," and what factual basis, if any, there was for believing that Moore was a tenant or regular resident there. Moore was similarly deprived of the chance to show that the witness' recollection was erroneous or that he was not credible.1 The informant's declaration falls within no exception to the hearsay rule recognized in the Federal Rules of Evidence, and reliance on this hearsay statement in determining petitioner's guilt or innocence was error.2
9
Although the only competent evidence of Moore's possession of the narcotics was his proximity to them in an apartment in which another person was also present and of which he was not shown to be the tenant or even a regular resident, the Solicitor General now argues that the error in admitting the hearsay evidence was harmless. That is far from clear. Whether or not the evidence of proximity alone, when viewed in the light most favorable to the prosecution, could suffice to prove beyond a reasonable doubt that Moore was in possession of the heroin, the fact is that the trial court did not find Moore guilty on that evidence alone.
10
(2) The Government suggests that Moore's failure to testify or to adduce any evidence showing "that his presence in the apartment was unrelated to the heroin" highlights the alleged harmlessness of the error, but this suggestion can carry no weight in view of the elementary proposition that the prosecution bore the burden of proving beyond a reasonable doubt every element of the charged offense. Equally unpersuasive is the Government's argument that the error was probably harmless because Moore was convicted in a bench trial; whatever the merits of that argument as a general proposition, it has a hollow ring in a case where the trial judge expressly relied upon the inadmissible evidence in finding the defendant guilty.
11
The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to that court so it may determine whether the wrongful admission of the hearsay evidence was harmless error.3
12
It is so ordered.
13
THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST, dissent from summary reversal and would set the case for oral argument.
1
Moore moved to require disclosure of the informant's identity, but the Government opposed the motion and the trial judge denied it.
2
Although we do not rely on the Government's confession of error, we note that the Solicitor General concedes that admission of the hearsay evidence on the question of Moore's guilt or innocence was improper.
3
The Government also urges that petitioner's failure to suggest in his closing argument that consideration of the hearsay evidence be restricted to the suppression issue constituted a waiver of any objection to the District Judge's reliance on that evidence in determining guilt or innocence. The Court of Appeals has not passed on this question, and we leave it for resolution by that court on remand.
| 01
|
429 U.S. 24
97 S.Ct. 200
50 L.Ed.2d 190
IMMIGRATION AND NATURALIZATION SERVICEv.Norma Andalis BAGAMASBAD.
No. 75-1666.
Nov. 1, 1976.
PER CURIAM.
1
Respondent, an alien who had overstayed her tourist visa by four years, applied to have her status adjusted to that of permanent resident alien pursuant to 8 U.S.C. § 1255(a). That section authorizes the Attorney General in his discretion to change the status of an alien who is physically present in the United States to that of a permanent resident, but only if, among other things, the alien would be eligible for an immigrant visa and admissible into the United States as a permanent resident.* The District Director of the Immigration and Naturalization Service (INS) denied respondent's application as a matter of discretion because she had made serious misrepresentations to the United States consul who had issued her visa. For the same reasons, the immigration judge presiding at a later deportation hearing also declined to exercise his discretion in her favor. Neither the District Director nor the immigration judge addressed himself to whether respondent satisfied the specific statutory requirements for permanent residence. The Board of Immigration Appeals affirmed, finding that the circumstances fully supported the discretionary denial of relief and concluding that "the immigration judge could properly pretermit the question of statutory eligibility and deny the application . . . as an exercise of discretion."
2
A divided Court of Appeals sitting en banc held that although the immigration judge had properly exercised his discretion to deny respondent's application, the statute required the judge to make findings and reach conclusions with respect to respondent's eligibility for admission into this country as a permanent resident. 531 F.2d 111 (CA3 1976). Disagreeing as we do with the Court of Appeals, we grant the petition for certiorari filed by the INS and the motion by respondent to proceed in forma pauperis and reverse the judgment of the Court of Appeals.
3
(1, 2) As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach. Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 1378, 87 L.Ed. 1774 (1943); Silva v. Carter, 326 F.2d 315 (CA9 1963), cert. denied, 377 U.S. 917, 84 S.Ct. 1181, 12 L.Ed.2d 186 (1964); Goon Wing Wah v. INS, 386 F.2d 292 (CA1 1967); De Lucia v. INS, 370 F.2d 305, 308 (CA7 1966), cert. denied, 386 U.S. 912, 87 S.Ct. 861, 17 L.Ed.2d 784 (1967). Here, it is conceded that respondent's application would have been properly denied whether or not she satisfied the statutory eligibility requirements. In these circumstances, absent an express statutory requirement, we see no reason to depart from the general rule and require the immigration judge to arrive at purely advisory findings and conclusions as to statutory eligibility.
4
In arriving at its contrary conclusion, the Court of Appeals relied on a dictum in Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242 (1956), which involved a similar provision, 8 U.S.C. § 1254(a), authorizing the Attorney General in his discretion to grant relief from deportation if certain eligibility requirements are met. In the course of affirming the discretionary denial of relief, the Court indicated that the statute entitled the applicant to a ruling on his eligibility. But the statement followed a reference to immigration regulations which then expressly required a determination of eligibility in each case. 351 U.S. at 352-353, 76 S.Ct. at 923. These regulations have been superseded, and the regulation applicable to this case has no such requirement. 8 CFR § 242.18(a) (1976).
5
(3) The Court of Appeals also thought it advisable to require the making of eligibility findings in 8 U.S.C. § 1255(a) proceedings to foreclose the possibility that a United States consul to whom an alien might later apply for an immigration visa would mistakenly construe the immigration judge's exercise of discretion as a finding of statutory ineligibility binding on the consul. But the basis for the immigration judge's action must be set forth in writing under 8 CFR § 242.18(a) (1976). Where, as here, his action is discretionary, it will be clear to any United States consul that no eligibility determination has been made. The consul will be free to give such findings as have been made their appropriate weight, if any, see Cartier v. Secretary of State, 165 U.S.App.D.C. 130, 137, 506 F.2d 191, 198 (1974), cert. denied, 421 U.S. 947, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975); Talavera v. Pederson, 334 F.2d 52, 57 (CA6 1964), and to make his own legal judgment on eligibility.
6
The judgment of the Court of Appeals is reversed.
7
So ordered.
*
That section provides:
"The status of an alien, other than an alien crewman, who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is approved." (Emphasis added.)
If adjustment of status is denied, and the alien leaves the country, such alien is free to apply to a United States consul in the country to which he or she is deported for an immigrant visa. Title 8 U.S.C. § 1255(a) was enacted so that such aliens would not inevitably be required to leave the country and apply to a United States consul in order to obtain permanent-resident status.
| 12
|
429 U.S. 28
97 S.Ct. 202
50 L.Ed.2d 194
Terrell Don HUTTO, Commissioner, Arkansas Department of Correctionv.Andrew Jackson ROSS.
No. 75-1726.
Nov. 1, 1976.
PER CURIAM.
1
In March 1972, in Johnson County, Ark., respondent was charged by information with the crime of embezzlement. With the assistance of counsel, respondent entered into plea negotiations with the prosecuting attorney, and the parties reached an agreement that respondent would enter a plea of guilty on the understanding that the prosecutor would recommend a 15-year prison sentence, with 10 years suspended. Approximately two weeks later, the prosecuting attorney asked respondent's counsel whether respondent would be willing to make a statement concerning the crimes.1 Although counsel advised respondent of his Fifth Amendment privilege and informed him that the terms of the negotiated plea bargain were available regardless of his willingness to comply with the prosecuting attorney's request, the respondent agreed to make a statement confessing to the crime charged. The record discloses that the statement was made under oath in the office of respondent's counsel, with counsel present, and after respondent had been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).2
2
Respondent subsequently withdrew from the plea bargain, retained new counsel, and demanded a jury trial. The trial court ruled, after hearing evidence outside the presence of the jury, that respondent had confessed voluntarily. The statement was admitted at trial, and respondent was convicted and sentenced to 21 years' imprisonment. On appeal, the Arkansas Supreme Court affirmed. Ross v. State, 257 Ark. 44, 514 S.W.2d 409 (1974). This Court denied certiorari. 421 U.S. 931, 95 S.Ct. 1658, 44 L.Ed.2d 88 (1975).
3
Respondent then filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Arkansas challenging the state court's finding of voluntariness. 28 U.S.C. § 2254. The District Court held an evidentiary hearing, and on May 23, 1975, denied the petition, agreeing with the state court that the confession was voluntary and therefore admissible. Mobley ex rel. Ross v. Meek, 394 F.Supp. 1219 (1975).
4
The Court of Appeals for the Eighth Circuit reversed, finding the statement inadmissible because "it . . . was made in connection with an offer to plead guilty and after a (plea) bargain had been agreed upon." 531 F.2d 924, 926 (1976). It made no difference, in the court's view, that the confession was not an express precondition of the plea bargain; the confession became "part and parcel" of the plea bargain because "(the) confession would (not) have been made at the request of the prosecution but for the plea bargain." Ibid. (emphasis added). Since the plea bargain had not been executed, the court found the confession involuntary and therefore inadmissible.
5
(1, 2) The only question in this case is whether a confession is per se inadmissible in a criminal trial because it was made subsequent to an agreed upon plea bargain that did not call for such a confession.3 We conclude that the Court of Appeals erred when it held that any statement made as a result of a plea bargain is inadmissible.
6
The Court of Appeals reasoned that respondent's confession was involuntary because it was made "as a result of the plea bargain" and would not have been made "but for the plea bargain." Id., at 927, 926. But causation in that sense has never been the test of voluntariness. See Brady v. United States, 397 U.S. 742, 749-750, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). The test is whether the confession was " 'extracted by any sort of threats or violence, (or) obtained by any direct or implied promises, however slight, (or) by the exertion of any improper influence.' " Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897); see Brady v. United States, supra, 397 U.S., at 753, 90 S.Ct., at 1471. The existence of the bargain may well have entered into respondent's decision to give a statement, but counsel made it clear to respondent that he could enforce the terms of the plea bargain whether or not he confessed. The confession thus does not appear to have been the result of " 'any direct or implied promises' " or any coercion on the part of the prosecution, and was not involuntary. Bram v. United States, supra, 168 U.S., at 542-543, 18 S.Ct., at 186-187.
7
The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
8
Mr. Justice STEWART dissents. Agreeing with the reasoning of the Court of Appeals, he would affirm its judgment.
9
It is so ordered.
1
Counsel for respondent testified at the federal habeas corpus hearing that the prosecuting attorney asked for the statement in order to complete his file "as to actually what occurred and how (respondent) took the money and used it." 1 Record 37.
2
In response to questions asked by the prosecuting attorney at this meeting, respondent said that his confession was voluntary and that he had not been promised anything in return for making the confession. Mobley ex rel. Ross v. Meek, 394 F.Supp. 1219, 1221-1222 (W.D.Ark.1975).
3
This case does not involve the admissibility at trial of a guilty plea subsequently withdrawn by leave of court. That issue was settled in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), which held that such pleas could not be used as evidence of guilt at a subsequent trial. Nor does this case involve the admissibility in criminal trials of statements made during the plea negotiation process. See Fed.Rule Crim.Proc. 11(e)(6); Moulder v. State, 154 Ind.App. 248, 289 N.E.2d 522 (1972); ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.4 (Approved Draft 1968).
| 01
|
50 L.Ed.2d 199
97 S.Ct. 204
429 U.S. 32
UNITED STATES, Petitioner,v.FOSTER LUMBER COMPANY, INC.
No. 74-799.
Argued Nov. 12, 1975.
Reargued Oct. 5, 1976.
Decided Nov. 2, 1976.
Syllabus
Section 172 of the Internal Revenue Code of 1954, as amended, provides that a "net operating loss" experienced by a corporate taxpayer in one year may be carried as a deduction to the preceding three years and the succeeding five years to offset taxable income of those years. The entire loss must be carried back to the earliest possible year and any of the loss not "absorbed" by that first year may then be carried to succeeding years, since "(t)he portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried." § 172(b)(2). Proceeding under that provision respondent taxpayer carried back a net operating loss of some $42,000, which it had sustained in 1968, to 1966, in which year respondent had ordinary income of about $7,000 and a capital gain of about $167,000. After applying the "alternative tax" method of § 1201(a), which permits low capital gains taxation, respondent maintained that after subtracting the $42,000 loss deduction from the 1966 ordinary income, the negative balance of about $35,000 was still available to offset income for 1967, respondent taking the position that its 1968 loss had been "absorbed" in 1966 only to the extent of the $7,000 ordinary income. Respondent accordingly made a refund claim for the taxable year 1967, which the Commissioner disallowed but which the District Court upheld. The Court of Appeals affirmed. Held : In carrying back a net operating loss under § 172 to a year in which the taxpayer had both ordinary income and capital gains and employed the alternative tax computation method of § 1201(a), the loss deduction available for carryover to a succeeding year is the amount by which the loss exceeds the taxpayer's "taxable income" ordinary income plus capital gains for the prior year the loss carryover being "absorbed" by capital gains as well as ordinary income. Pp. 36-48.
(a) Absent any specific provision in the Code excluding capital gains from "taxable income," the Code's definitions of "taxable income" and gross income in §§ 63(a) and 61(a) require that both capital gain and ordinary income must be included in the taxable income that § 172 directs must be offset by the loss deduction before any loss excess can be found available for transfer forward to the succeeding taxable year, and if Congress had intended to permit a loss deduction to offset only ordinary income when § 1201(a) is used, it could easily have said so. Pp. 36-41.
(b) The legislative history of the loss offset provisions does not support respondent's contention that they were designed to eliminate all consequences of the timing of the loss. Pp. 42-46.
(c) Had Congress intended substantially to eliminate timing accidents from the calculation of income on an average basis it would not have tolerated the departure from that purpose in § 172(c), under which a taxpayer cannot have a loss for a particular year unless its deductions exceed its ordinary income and its capital gains. Pp. 46-47.
8 Cir., 500 F.2d 1230, reversed.
Stuart A. Smith, Washington, D. C., for petitioner.
Russell W. Baker, Kansas City, Mo., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
Section 172 of the Internal Revenue Code of 1954, as amended, provides that a "net operating loss" experienced by a corporate taxpayer in one year may be carried as a deduction to the preceding three years and the succeeding five years to offset taxable income of those years.1 The entire loss must be carried to the earliest possible year; any of the loss that is not "absorbed" by that first year may then be carried in turn to succeeding years. The respondent, Foster Lumber Co., sustained a net operating loss of some $42,000 in 1968, which it carried back to 1966. In 1966 the respondent had had ordinary income of about $7,000 and a capital gain of about $167,000. The question presented is whether a loss carryover is "absorbed" by capital gain as well as ordinary income or is instead limited to offsetting only ordinary income. The taxpayer filed a refund suit in Federal District Court challenging the Commissioner's disallowance of its claim that the $35,000 of the 1968 loss not used to offset its 1966 ordinary income survived to reduce its 1967 tax liability. The trial court and the Court of Appeals for the Eighth Circuit agreed with the taxpayer. We granted certiorari to resolve a Circuit conflict on a recurring question of statutory interpretation.2
2
* The dispute in this case centers on the meaning of "taxable income" as used in § 172(b)(2) to govern the amount of carrybacks and carryovers that can be successively transferred from one taxable year to another. In relevant part, § 172(b)(2) requires the net operating loss to be carried in full to the earliest taxable year possible, and provides: "The portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried." Thus when the loss has been carried back to the first year to which it is applicable, the loss "survives" for carryover to a succeeding taxable year only to the extent that it exceeds the taxable income of the earlier year. "Taxable income" is defined in § 63(a) of the Code to mean "gross income, minus the deductions allowed by this chapter." Gross income is in turn defined by § 61(a) of the Code as "all income from whatever source derived," and specifically includes "(g)ains derived from dealings in property." On its face the concept of "taxable income" thus includes capital gains as well as ordinary income. In the absence of a specific provision excluding capital gains,3 it thus appears that both capital gain and ordinary income must be included in the taxable income that § 172 directs must be offset by the loss deduction before any loss excess can be found to be available for transfer forward to the succeeding taxable year.
3
The respondent argues that the Code's prescribed method for calculating the taxes due on its taxable income conflicts with this natural reading of § 172. The Code provides two methods for computing taxes due on corporate income, and a corporation is under a statutory duty to employ the method that results in the lower tax. 26 U.S.C. § 1201(a). Under § 11, the "regular method," ordinary income and capital gains income are added together to produce taxable income; during the period at issue a 22% tax rate was then imposed on the first $25,000 of taxable income and the remainder was taxed at a 48% rate. Section 1201(a) of the Code prescribes the "alternative tax," calculated in two steps and applied when resulting in a lower tax liability for the corporation. The first step computes a partial tax on the taxable income reduced by the net long-term capital gain4 at the regular corporate rates imposed by § 11. This step effectively subjects only ordinary income to the partial tax. The second step imposes a 25% tax on the net long-term capital gain. The alternative tax is the sum of the partial tax and the tax on capital gain. In practical terms, the alternative tax does not redefine taxable income, but it does result in a much lower effective tax rate for corporations whose income is in whole or substantial part composed of capital gain. It thus extends to corporations the long standing statutory policy of taxing income from capital gain at a lower rate than that applicable to ordinary income.
4
The problem from the respondent's point of view is that the mechanics of the alternative tax work in such a way that the potential benefit of the loss deduction may not be fully reflected in reduced tax liability for the taxable year to which the loss is carried. The problem arises when, as in 1966 for the respondent, the "alternative method" governs the calculation of tax liability, and the ordinary income effectively subject to the partial tax under the first step is less than the loss deduction subtracted from it. The Code does not permit the excess loss to be subtracted from the capital gain income before the second step is carried out.5 Under the alternative method, therefore, the tax benefit of the loss deduction is effectively lost for the carryover year to the extent that it exceeds the ordinary income in that year. This can be seen simply by considering the taxpayer's circumstances in this case. Subtracting the loss deduction of $42,203.12 from the 1966 ordinary income of $7,236.05 under Step 16 resulted in a negative balance of $34,967.07; no partial tax was imposed and the 25% rate on the $166,634.81 of capital gains under Step 2 produced a tax of $41,658.70. If the loss deduction had been merely.$7,236.05, and thus exactly offset the.$7,236.05 of ordinary income, however, the tax due would still have been $41,658.70. The taxpayer therefore asserts that only.$7,236.05 of the loss deduction was actually "used" in 1966 and that $34,967.07 remained to be carried forward to reduce its tax liability in 1967.
5
There can be no doubt that if the "regular method" had been applicable to the respondent's taxes in 1966, the loss deduction ($42,203.12) would have been fully "used" to offset capital gains ($166,634.81) as well as ordinary income ($7,236.05), leaving $131,667.74 to be taxed, and a tax bill of $58,200.52.7 It is clear that the alternative tax produced the lower tax liability despite the inability to fully "use" the loss deduction; the lower tax resulted directly from the favorable rate of taxation of capital gain income prescribed by the alternative method. The question is whether the two "tax benefit" provisions relied on by the respondent low capital gain taxation under the alternative method and the loss carryback provision must each be maximized independently of the other or whether Congress instead anticipated that the benefit provided by the loss deduction might on occasion be subsumed in the greater benefit provided by the alternative tax computation method.
6
Section 172 does not explicitly address the question of fit between these two tax benefits, providing simply that "(t)he portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried." The respondent contends, and the Tax Court in Chartier Real Estate Co. v. Commissioner, 52 T.C. 346, aff'd per curiam, 428 F.2d 474 (CA1), held, that the phrase "to which such loss may be carried" modifies "taxable income" as well as "each of (the) prior taxable years." The Tax Court in the Chartier case further held that " 'taxable income' in this context (as modified by the above phrase) means that taxable income to which the loss is actually applied in computing actual tax liability." 52 T.C., at 357-358. In other words, it was held, taxable income refers only to that ordinary income offset by a loss deduction that produces an additional reduction in tax liability under the alternative tax computation method.
7
It is, of course, not unusual in statutory construction to find that a defined term's meaning is substantially modified by an attached clause. But reading "taxable income to which . . . such loss may be carried" as equivalent to "taxable income to which such loss may be carried and deducted, resulting in a reduction of tax liability" gives these phrases a synergistic effect that goes well beyond their natural import. Such a construction subtly redefines "taxable income" in terms of the tax impact of a particular method of tax calculation. It thus implicitly departs from the "term of art" definition of taxable income given in § 63(a), while discovering a significance in the word "carry" that goes well beyond its usual connotation of a transfer of a loss from the year in which it occurred. Standing alone, this strained reading of the statute's terms falls considerably short of the explicit statutory support the Court has previously required of taxpayers seeking a tax benefit from losses suffered in other years. See, e. g., Woolford Realty Co. v. Rose, 286 U.S. 319, 326, 52 S.Ct. 568, 569, 76 L.Ed. 1128.8 If Congress had intended to allow a loss deduction to offset only ordinary income when the alternative tax calculation method is used, it could easily have said so.
II
8
The respondent further asserts that the legislative history and the broad policy behind the loss deduction section of the Code support its interpretation of "taxable income" under § 172(b). Although, for the reasons stated above, it can hardly be said that the benefit claimed by the respondent is fairly within the statutory language, it is not inappropriate to consider this contention to consider, in short, whether "the construction sought is in harmony with the statute as an organic whole." See Lewyt Corp. v. Commissioner, 349 U.S. 237, 240, 75 S.Ct. 736, 739, 99 L.Ed. 1029.
9
The respondent relies on the Court's opinion in Libson Shops, Inc. v. Koehler, 353 U.S. 382, 386, 77 S.Ct. 990, 992, 1 L.Ed.2d 924 for a description of the legislative purpose in allowing loss carryovers. In that case the Court said that the net operating loss carryover and carryback provisions "were enacted to ameliorate the unduly drastic consequences of taxing income strictly on an annual basis. They were designed to permit a taxpayer to set off its lean years against its lush years, and to strike something like an average taxable income computed over a period longer than one year."
10
There were, in fact, several policy considerations behind the decision to allow averaging of income over a number of years. Ameliorating the timing consequences of the annual accounting period makes it possible for shareholders in companies with fluctuating as opposed to stable incomes to receive more nearly equal tax treatment. Without loss offsets, a firm experiencing losses in some periods would not be able to deduct all the expenses of earning income. The consequence would be a tax on capital, borne by shareholders who would pay higher taxes on net income than owners of businesses with stable income.9 Congress also sought through allowance of loss carryovers to stimulate enterprise and investment, particularly in new businesses or risky ventures where early losses can be carried forward to future more prosperous years.10
11
The respondent focuses on the equalizing purposes of § 172 to argue that the Commissioner's insistence on the absorption of the loss carryover by capital gain income is inconsistent with § 172's primary purpose of avoiding the subjection of similarly situated taxpayers to significantly different treatment solely on the basis of arbitrary timing. This argument is based on the observation that, unless it is accepted, the taxpayer's ability to fully benefit from the net loss carryover deduction will turn on whether ordinary income in the first year to which the loss may be carried exceeds or is less than the loss deduction. If the ordinary income exceeds the loss, the taxpayer will get the full benefit of the deduction; if the ordinary income is less than the loss, the shortfall will be absorbed by capital gain income without providing an incremental tax reduction.
12
Congress may, of course, be lavish or miserly in remedying perceived inequities in the tax structure. While there is no doubt that Congress through the loss carryover provisions did intend to reduce the arbitrariness inherent in a taxing system based on annual accounting, the history of the loss offset provision does not support the respondent's vision of a Congress seeking perfection in the realization of its objective.11
13
Over the years, Congress has shifted the definition of both the kinds of losses and the kinds of income that may be used in calculating the loss offset, indicating its ability in this area of the Internal Revenue Code as in others to make precise definitions and later to modify them in pursuing its broad policy goals.12 For example, Congress in 1924 specifically provided that a noncorporate taxpayer could use the excess of a loss deduction over ordinary income to reduce the amount of capital gain subject to tax,13 thus permitting full "use" of the loss deduction by the taxpayer. The inference can be drawn that Congress was aware of the potential "waste" of the deduction otherwise and acted to prevent it. That provision was in turn left out of the 1939 Code, leading to the contrary inference that Congress was aware of the "waste" of the deduction but decided not to remedy it.
14
The 1939 revision of the Code, in fact, tolerated even further "waste" of the loss deduction, providing not only that the loss must be offset against net income (ordinary income and capital gains),14 but that tax-exempt interest income must also be included in income that the loss was required to offset. This provision had the same arbitrary policy consequences that the respondent decries under the alternative tax computation method applicable here. It required the loss deduction to be "used up" in offsetting tax-exempt income, thus "wasting" a portion of the loss deduction's capacity to reduce overall tax liability. And it made the utility of the loss deduction turn on the accidents of timing. The loss deduction would be "wasted" in offsetting tax-exempt income realized in an early year, while if the tax-exempt income were not realized until a later year the full tax benefit of the loss deduction could have been garnered. Such results cut against any assertion that the loss-deduction provisions have consistently been used completely to minimize arbitrary timing consequences, and indicate that Congress has not hesitated in this area to limit taxpayers to the enjoyment of one tax benefit even though it could have made them eligible for two.
15
The 1954 Internal Revenue Code continued the 1939 Code's definition of ordinary and capital gain income as subject to setoff by the § 172 loss deduction. Although several substantive changes in the loss-deduction section were made and commented on in the legislative reports accompanying the 1954 Code,15 there was no indication that the addition to § 172(b) of the phrase "to which such loss may be carried" was meant to signal a willingness to condition the loss deduction's life on its ability to produce full tax benefits for the taxpayer. In view of the predecessor statutes' tolerance of a taxpayer's inability to maximize the tax benefit of a loss deduction, and the complete failure of the Committee Reports in any way to indicate the shift in policy the respondent claims to discern in the 1954 Code revision, the legislative history simply does not support the respondent's contention that the addition in 1954 of the phrase "to which such loss may be carried" was intended to eliminate the requirement that the loss deduction be used to offset capital gain under the alternative tax computation method.
16
We turn finally to an examination of § 172(b) in the context of the statute as it exists today. If the statute could be viewed as consistently minimizing the arbitrariness of timing consequences, a construction of § 172(b) inconsistent with that approach might be suspect. Section 172 as a whole has not, however, been drafted with the singleminded devotion to reducing arbitrary timing consequences that the respondent urges should control the decision in this case.
17
The most telling example of Congress' failure to remedy all timing accidents that "rob" a taxpayer of the full benefit of the loss deduction can be found in § 172(c). That provision defines a "net operating loss" as "the excess of the deductions allowed by this chapter over the gross income." A taxpayer does not have a loss for a particular year unless its deductions exceed its ordinary income and its capital gains. When an ordinary income loss is experienced in a year of negligible capital gains it gives rise to a net operating loss that can be carried over to other years. If that same ordinary income loss comes in a year when the net capital gains exceed that loss, there is no net operating loss under the statute to carry to another year. Because the statute also forbids setting off that ordinary loss against the capital gains before the capital gain tax is computed under the alternative method,16 the loss' potential tax benefit is arbitrarily "lost" to the taxpayer solely as a result of accidents of timing. Congress, of course, can and occasionally has in the past treated loss years differently from carryover years. But if Congress were intent on substantially eliminating accidents of timing from the calculation of income on an average basis, it would hardly have tolerated such a departure from that purpose at the very inception of the tax benefit provided by § 172.
18
The respondent's argument is further undercut by the holding in Chartier Real Estate Co., not challenged here,17 that the statute forbids using a loss deduction to offset capital gain income in a loss carryover year. If such an offset were permitted, the taxpayer would benefit by a further reduction in its capital gain tax liability already calculated at a preferential rate. The respondent in effect asks this Court to infer from that deliberate denial of the limited tax benefit that would accrue from using the loss to offset preferentially taxed capital gains, that Congress implicitly meant to confer the even greater tax benefit of using the loss to offset ordinary income taxed at the higher regular rates. In a statutory section that part by part manages explicitly to detail loss calculations on one hand and deductions on the other,18 such a leap in statutory construction must be much more firmly grounded in a consistently articulated and achieved congressional purpose than can be discerned here.
19
The respondent's broad argument, in short, boils down to a contention that "harmony with the statute as an organic whole" can be achieved in this area only by reading the Code provision so as to give the greatest possible benefits to all taxpayers. For the reasons we have discussed, that is a contention that cannot be accepted.
The judgment is
Reversed
20
Mr. Justice STEVENS, concurring.
21
Mr. Justice BLACKMUN advances persuasive policy arguments against the Court's reading of § 172. But the same arguments apply equally to the Code's treatment of an operating loss which occurs in the same year as an offsetting capital gain. In paragraph 209 of his opinion Mr. Justice BLACKMUN seems to accept the necessity of a "wooden and unimaginative reading" of the statute in the "same year" situation though he rejects such a reading in a case involving different years. Since the statutory language seems rather plain in both situations, I think we have the same duty in both to resist the temptation to attempt any creative rewriting of the Internal Revenue Code. The relevant Code provisions were perfectly clear in 1939 and there is simply no basis for concluding that the 1954 Code was intended to achieve the result favored by Mr. Justice BLACKMUN, no matter how sensible such a result would be. Accordingly, as much as I would like to reach the result advocated by the dissent, I find the arguments in the Court's opinion, which I join, unanswerable.
22
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN, and Mr. Justice POWELL join, dissenting.
23
What is at issue here is whether a corporate taxpayer's fiscal 1966 net operating loss deduction, carried back from 1968, as provided for by § 172(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 172(a), was, to use the Government's and the Court's term, "absorbed" by the taxpayer's capital gain1 for 1966, despite the taxpayer's inability to offset the deduction against capital gain.2
24
The Government's position is that the 1968 loss was "completely absorbed"3 in 1966 and is unavailable for any other "carry" year (here, fiscal 1967) of the taxpayer; the Government thus would deny the taxpayer any tax benefit whatsoever for the excess of its 1968 loss over its 1966 net operating income.4 The Court today agrees. Because I feel the Court's conclusion is at odds with obvious congressional policies, defeats the purposes of both the capital gain and the "carry" provisions, and is the product of a wooden and unimaginative reading of the pertinent Code sections, I dissent. Congress, accordingly, if its policies are to be effectuated, must try once again.
25
1. There are two separate policies at work here. Each favors the taxpayer; neither favors the Government. The first is the policy behind Congress' separating capital gain from ordinary income and providing the alternative method of tax computation by § 1201 of the Code, 26 U.S.C. § 1201. By placing a ceiling on the tax rate for capital gain, Congress encourages both the investment and the formation of capital that has proved so essential for the Nation's economic development and strength. Chief Judge Mehaffy, in his opinion for the Court of Appeals in the present case, put it this way:
26
"The purpose behind the alternative tax in section 1201 is to alter the tax rate to reflect the traditionally unique character of income arising out of the sale of capital assets." 500 F.2d 1230, 1232 (CA8 1974).
27
The second policy is that behind the carryback and carryover provisions: to afford the taxpayer relief from the peaks and valleys occasioned by our system of reporting and paying income taxes annually, and to encourage venture capital.
28
"Those provisions were enacted to ameliorate the unduly drastic consequences of taxing income strictly on an annual basis. They were designed to permit a taxpayer to set off its lean years against its lush years, and to strike something like an average taxable income computed over a period longer than one year." Libson Shops, Inc. v. Koehler, 353 U.S. 382, 386, 77 S.Ct. 990, 993, 1 L.Ed.2d 924 (1957).5
29
See also Bulova Watch Co. v. United States, 365 U.S. 753, 759, 81 S.Ct. 864, 868, 6 L.Ed.2d 72 (1961); S.Rep. No. 665, 72d Cong., 1st Sess., 11 (1932); H.R.Rep. No. 855, 76th Cong., 1st Sess., 9 (1939); H.R.Rep. No. 2319, 81st Cong., 2d Sess., 59 (1950).
30
The Government's and the Court's position, however, sets these policies at cross purposes. The alternative method, required under § 1201 when capital gain is sufficient to make it beneficial for the current year, may become a fatal trap if net operating loss happens to be sustained in a subsequent year. This is so because the Government, as it has here, then confronts the taxpayer with the proposition that the carryback loss excess has been "absorbed" even though no ordinary income, or income of any kind, has in fact absorbed it. Use of the alternative method thus has the wholly unintended and undesirable result of undercutting the ameliorative purpose of the "carry" provisions, and they become meaningless in specific application. What supposedly was given by each provision is now, and to a largely unpredictable extent, taken away. I regret this disregard for avowed congressional policies and for the statutory provisions that effectuated those policies.
31
2. There is a mathematical and tax illogic and unfairness in the Government's and the Court's analysis. Assuming, as we must, that inequality is not unknown in income taxation, that an adverse event of year A does not ordinarily soften the tax impact upon a prior or subsequent and more prosperous year B, that this is a consequence of the fact that income and the taxes thereon are computed on an annual basis, see Burnet v. Sanford & Brooks Co., 282 U.S. 359, 363, 51 S.Ct. 150, 151, 75 L.Ed. 383 (1931); Woolford Realty Co. v. Rose, 286 U.S. 319, 326, 52 S.Ct. 568, 569, 76 L.Ed. 1128 (1932), and that " 'general equitable considerations' do not control the question of what deductions are permissible," United States v. Olympic Radio & Television, 349 U.S. 232, 236, 75 S.Ct. 733, 736, 99 L.Ed. 1024 (1955); Lewyt Corp. v. Commissioner, 349 U.S. 237, 240, 75 S.Ct. 736, 739, 99 L.Ed. 1029 (1955), the fact remains that the carryback and carryover provisions, as noted above, were designed to provide a leveling influence on the peaks and valleys and to have the taxpayer's burden be one that is more realistic and in tune with actual economic gain. Thus, "where the benefit claimed by the taxpayer is fairly within the statutory language and the construction sought is in harmony with the statute as an organic whole, the benefits will not be withheld from the taxpayer." Ibid. This is accomplished, it seems to me, by deeming a net operating loss as "carried" to taxable income only to the extent there is an actual setoff. Despite the Court's intimation to the contrary, ante, p. 43-44, this effectuates only fairness, not perfection. No one expects perfection in income taxation.
32
3. As the Government applies its theory to this taxpayer, the results are startling. Had the capital gain of fiscal 1966 been realized in its entirety in fiscal 1967, the taxpayer's net operating loss excess (remaining after washing out the small net operating income of fiscal 1966) would be applied in its entirety against the larger net operating income of 1967. The result is that the taxpayer's total income taxed for 1966-1968 would then be its actual net economic gain for that period. The same would be true if the taxpayer's fiscal 1967 net operating income had been realized in fiscal 1966. But under the Government's and the Court's analysis, solely because the taxpayer realized capital gain in fiscal 1966, the net operating loss of 1968 is said to be totally "absorbed" in 1966 even though the "absorption" is imaginary and little less than mystical.
33
The Government's "absorption" serves to make the "income" taxed for the aggregate period exceed the taxpayer's actual economic gain by the amount of the so-called "absorption." The result thus depends on happenstance, that is, on whether the capital gain comes earlier or later. This totally defeats the ameliorative purpose of the carryback and carryover legislation and, it seems to me, is punitive in application.6 On this approach, the taxpayer, to the extent business exigencies permit, is forced to time capital gain in accord with its estimate of unknown and unforeseeable net operating income or loss in future tax years. And it is hardly an answer to claim, as the Government does, that the "absorption" of the excess in fiscal 1966 really did not serve to increase the amount taxed for the aggregate period. No taxpayer, struggling with the realities of the business and tax worlds, will ever be convinced that the allowance of a deduction by words when coupled with its disallowance by administrative fiat, does not result in the taxpayer's being taxed on more economic gain than it has realized. In contrast, the application of consistent prior judicial decisions, see paragraph 4, infra, would better accord with economic reality, and would treat corporate taxpayers with stable income and those with fluctuating income over the "carry" period more nearly the same.
34
4. Decisions in favor of the taxpayer's position provided an unbroken line of authority in the Tax Court,7 in the District Courts,8 and in the Courts of Appeals,9 until the Fourth Circuit, under the Government's persistence and by a divided vote, concluded otherwise.10 Mutual Assurance Soc. v. Commissioner, 505 F.2d 128 (1974).11 Where, as here, we are concerned with technical and what the Government calls "the highly detailed provisions of Section 172," Brief for United States 6, the Tax Court's expertise is at its most valuable level and should be sought out and accorded deference. See the comment of Mr. Justice Jackson, dissenting, in Arrowsmith v. Commissioner, 344 U.S. 6, 12, 73 S.Ct. 71, 74, 97 L.Ed. 6 (1952), concerning the Tax Court's competence and "steady influence" in "a field beset with invisible boomerangs."12 But the Court accords no deference to the Tax Court's consistent position on the technical problem before us.
35
The reasoning in Chartier Real Estate Co. v. Commissioner, 52 T.C. 346 (1969), aff'd, 428 F.2d 474 (CA1 1970), and the several cases that followed it, accommodates the respective congressional purposes behind the capital gain and the "carry" provisions. In Chartier the Government's dual position seeking to prevent the application of the loss carryback to the earlier year's capital gain, and also claiming that the carryback nevertheless was absorbed by the capital gain sought the best of two worlds. Its first proposition was upheld. Its second proposition was rejected, and properly so, because the acceptance of the former precluded acceptance of the latter if congressional policy were to be recognized.
36
No effort was made in Congress to change the statutes in order to overcome the judicial interpretation that was uniform until 1974. That, for me, as Judge Russell pertinently observed in dissent in Mutual Assurance, 505 F.2d, at 138, "is a persuasive testimonial that those decisions set forth the proper construction of the statutes." And the Government acknowledged at oral argument that the Internal Revenue Service sought no clarifying legislation in the Congress. Tr. of Oral Rearg. 18-20.
37
5. The legislative history reflects a proper concern for achieving a tax structure that operates fairly on income that fluctuates. Amelioration provisions are not new and, in fact, appeared in the income tax law as early as the Revenue Act of 1918. § 204(b) of that Act, 40 Stat. 1061. Since 1939 the periods for carrybacks and carryovers have been expanded13 from the two-year carryover of 1939 until, in 1958 and lasting until 1976, a structure of a three-year carryback and a five-year carryover was erected.14 It was said later that for "most companies" this period "is long enough to absorb all of their losses against income." S.Rep. No. 1881, 87th Cong., 2d Sess., 129 (1962).
38
6. The Court today accepts the Government's contention that the meaning of the critical § 172(b)(2)15 is clearly and unambiguously against the taxpayer. It is said that the phrase "to which such loss may be carried" obviously modifies "each of the prior taxable years," rather than "taxable income."16 That the language of the statute is not clearly in favor of the Government is demonstrated, if by no other means, by the existing conflict among the Circuits and by the decisions of the District Courts and of the Tax Court, cited above in nn. 7, 8, and 9, that have run so uniformly against the Government. If the language were as clear and unambiguous in the Government's favor as is contended, it hardly could have been read otherwise by so many capable and experienced judges. And the clear meaning which the Court now perceives does not, and cannot, comport with the underlying purpose of the carryback and carryover provisions.
39
7. The definition of § 172(c),17 to the effect that a taxable year does not result in a net operating loss when capital gain of that year exceeds any deficit in ordinary income, does not defeat the taxpayer. Congress was definite and specific in its definition of "net operating loss" for "carry" purposes in a tax year of that kind. But we are not concerned here with such a year and such a definition. We are concerned, instead, with 1968 where this taxpayer had a "net operating loss" and no capital gain or loss. That net operating loss is established and is available for "carry." The definitional restriction of § 172(c) obviously has no application to 1968 for this taxpayer.
40
Nor is § 172(d)(2)(B) contrary to the taxpayer's position. Section 172(d)(2) is restricted in its application to "a taxpayer other than a corporation." Corporate and individual taxpayers frequently are treated differently in our income tax structure, and I find little of assistance, even by way of inference, in § 172(d)(2)(B) for resolving the issue before us in connection with a corporate taxpayer.
41
8. "Taxation is a practical matter." Harrison v. Schaffner, 312 U.S. 579, 582, 61 S.Ct. 759, 761, 85 L.Ed. 1055 (1941). To do what the Court does today is to ignore that wise precept. What the Government urges and the Court does promotes inequality of treatment between taxpayers experiencing like economic gains over the "carry" period whenever a capital gain happens to be present in one taxpayer's taxable year but happens to be absent in the same year for another taxpayer. A provision intended to equalize to a great extent the tax burdens as between corporations with fluctuating income and those with stable income should not be used to render that goal unattainable or to introduce irrationalities.
42
I would affirm the judgment of the Court of Appeals.
1
Title 26 U.S.C. § 172 (1964 ed.): "Net operating loss deduction.
"(a) Deduction allowed.
There shall be allowed as a deduction for the taxable year an amount equal to the aggregate of (1) the net operating loss carryovers to such year, plus (2) the net operating loss carrybacks to such year. For purposes of this subtitle, the term 'net operating loss deduction' means the deduction allowed by this subsection.
"(b) (as amended by § 317(b), Trade Expansion Act of 1962, Pub.L. 87-794, 76 Stat. 889, and §§ 210(a) and 210(b), Revenue Act of 1964, Pub.L. 88-272, 78 Stat. 47, 48) Net operating loss carrybacks and carryovers.
"(1) Years to which loss may be carried.
"(A)(i) Except as provided in clause (ii) and in subparagraph (D), a net operating loss for any taxable year ending after December 31, 1957, shall be a net operating loss carryback to each of the 3 taxable years preceding the taxable year of such loss.
"(ii) In the case of a taxpayer with respect to a taxable year ending on or after December 31, 1962, for which a certification has been issued under section 317 of the Trade Expansion Act of 1962, a net operating loss for such taxable year shall be a net operating loss carryback to each of the 5 taxable years preceding the taxable year of such loss.
"(B) Except as provided in subparagraphs (C) and (D), a net operating loss for any taxable year ending after December 31, 1955, shall be a net operating loss carryover to each of the 5 taxable years following the taxable year of such loss.
"(2) Amount of carrybacks and carryovers.
"Except as provided in subsections (i) and (j), the entire amount of the net operating loss for any taxable year (hereinafter in this section referred to as the 'loss year') shall be carried to the earliest of the taxable years to which (by reason of paragraph (1)) such loss may be carried. The portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried. For purposes of the preceding sentence, the taxable income for any such prior taxable year shall be computed
"(A) with the modifications specified in subsection (d) other than paragraphs (1), (4), and (6) thereof; and
"(B) by determining the amount of the net operating loss deduction
"(i) without regard to the net operating loss for the loss year or for any taxable year thereafter, and
"(ii) without regard to that portion, if any, of a net operating loss for a taxable year attributable to a foreign expropriation loss, if such portion may not, under paragraph (1)(D), be carried back to such prior taxable year,
"and the taxable income so computed, shall not be considered to be less than zero. For purposes of this paragraph, if a portion of the net operating loss for the loss year is attributable to a foreign expropriation loss to which paragraph (1)(D) applies, such portion shall be considered to be a separate net operating loss for such year to be applied after the other portion of such net operating loss.
"(c) Net operating loss defined.
"For purposes of this section, the term 'net operating loss' means (for any taxable year ending after December 31, 1953) the excess of the deductions allowed by this chapter over the gross income. Such excess shall be computed with the modifications specified in subsection (d).
"(d) Modifications.
"The modifications referred to in this section are as follows:
"(1) Net operating loss deduction.
"No net operating loss deduction shall be allowed.
"(2) Capital gains and losses of taxpayers other than corporations.
"In the case of a taxpayer other than a corporation
"(B) the deduction for long-term capital gains provided by section 1202 shall not be allowed."
2
420 U.S. 1003, 95 S.Ct. 1443, 43 L.Ed.2d 760. In the present case the Court of Appeals for the Eighth Circuit followed the seminal Tax Court decision in Chartier Real Estate Co. v. Commissioner, 52 T.C. 346, aff'd per curiam, 428 F.2d 474 (CA1). See 500 F.2d 1230. The Ninth Circuit is in agreement with the First and the Eighth Circuits. See Olympic Foundry Co. v. United States, 493 F.2d 1247, and Data Products Corp. v. United States, No. 74-334 (Dec. 27, 1974), cert. pending No. 74-996. The Fourth Circuit refused to follow the reasoning of those Circuits in Mutual Assurance Soc. v. Commissioner, 505 F.2d 128. The Sixth Circuit appears to agree in principle with the Fourth Circuit's reasoning. See Axelrod v. Commissioner, 507 F.2d 884.
3
Congress has specifically tailored definitions of taxable income in other sections of the Code when the § 63(a) definition is inadequate for its purposes. See, e. g., 26 U.S.C. § 593(b)(2)(E) (mutual savings banks); § 832(a) (insurance companies); § 852(b)(2) (regulated investment companies). Congress in fact did state certain modifications of the term "taxable income" in the third sentence of § 172(b)(2), but none of these modifications suggests any instances in which taxable income does not include capital gains.
4
For purposes of simplicity we use the term "net long-term capital gain" or simply "capital gain" rather than the statutory phrase "excess of net long-term capital gain over net short-term capital loss." Similarly, sometimes in this opinion we use the term "loss deduction" rather than the statutory phrase "net operating loss deduction."
5
See 26 U.S.C. § 1201(a)(2) and Chartier Real Estate Co., 52 T.C., at 350-356; Weil v. Commissioner, 23 T.C. 424, aff'd, 6 Cir., 229 F.2d 593 (CA6).
6
The description in the text of the alternative tax computation method is truncated; the mechanics are here set out in full:
"Alternative Method" (Section 1201(a))
Taxable Income (excluding net operating loss deduction):
Ordinary Income $7,236.05
Capital Gain Income 166,634.81
$173,870.86
LESS: Net Operating Loss Deduction Resulting From
Carryback of 1968 Net Operating Loss (42,203.12)
---------------
Taxable Income (Section 63(a)) $131,667.74
(Step 1—Partial Tax)
LESS: Excess of Net Long-Term Capital Gain Over Net
Short-Term Capital Loss $166,634.81
----------------
Balance ($ 34,967.07)
Partial Tax at Section 11 Rates on Balance (Section 1201(a)(1)) -0-
(Step 2—Capital Gain Tax)
PLUS: Capital Gain Tax at Flat 25 Percent Rate on Excess of
Net Long-Term Capital Gain Over Net Short-Term Capital Loss
(Section 1201(a)(2)) $ 41,658.70
Alternative Tax (Sum of Partial Tax and Capital Gains Tax) (1966
rates) $ 41,658.70
7
The steps taken by the Internal Revenue Service to reach that result are as follows:
"Regular Method" (Section 11)
Taxable Income (excluding net operating loss deduction):
Ordinary Income $7,236.05
Capital Gain Income 166,634.81
$173,870.86
LESS: Net Operating Loss Deduction Resulting From Carryback
of 1968 Net Operating Loss (42,203.12)
----------------
Taxable Income (Section 63(a)) $131,667.74
Regular Tax (1966 rates) $ 58,200.52
----------------
----------------
(The regular tax reflects a $1,500 tax on multiple surtax exemption not at issue in this case.)
8
The construction urged by the respondent also finds no support in the Treasury Regulations on Income Tax that implement § 172. See 26 CFR §§ 1.172-4, 1.172-5 (1976).
9
See generally United States Treasury Department and Joint Committee on Internal Revenue Taxation, Business Loss Offsets (1947), excerpted in B. Bittker & L. Stone, Federal Income Estate and Gift Taxation 859-863 (1972).
10
See, e. g., H.R.Rep. No. 855, 76th Cong., 1st Sess., 9 (1939):
"New enterprises and the capital-goods industries are especially subject to wide fluctuations in earnings. It is, therefore, believed that the allowance of a net operating business loss carry-over will greatly aid business and stimulate new enterprises."
See also H.R.Rep. No. 1337, 83d Cong., 2d Sess., 27 (1954), U.S.Code Cong. & Admin.News 1954, pp. 4025, 4052:
"The longer period for averaging will improve the equity of the tax system as between businesses with fluctuating income and those with comparatively stable incomes, and will be particularly helpful to the riskier types of enterprises which encounter marked variations in profitability."
11
Since 1918, the carryover period has gradually been lengthened to provide more potential years of positive income against which experienced losses can be offset; a perfect system from a taxpayer's point of view, however, would eschew any time limitations altogether.
12
Section 204(b) of the Revenue Act of 1918 was the first provision to permit the excess of expenses over income in one year to be deducted in another tax year. A one-year carryover and carryback was allowed. See Act of Feb. 24, 1919, § 204, 40 Stat. 1060. In 1933, the National Industrial Recovery Act abolished all net operating loss carryovers and carrybacks. See Act of June 16, 1933, § 218(a), 48 Stat. 209. In 1939, a net operating loss carryover provision was reintroduced and provided for a two-year carryover. See Act of June 29, 1939, § 122, 53 Stat. 867. The three-year carryback and five-year carryover permitted since 1958, has recently been amended to allow seven years for carryover and to permit the taxpayer to elect to forgo carrybacks and to instead carry the net operating loss forward seven years. See Tax Reform Act of 1976, Pub.L. § 806(a), 90 Stat. 1598.
13
Act of June 2, 1924, c. 234, § 208(a)(5), 43 Stat. 262.
14
Counsel for the respondent relied in oral argument on Merrill v. United States, 122 Ct.Cl. 566, 105 F.Supp. 379, which excluded capital gain from the term "net income" in interpreting the 1939 Code's § 12(g) limitation on tax liability, to demonstrate that "net income" under the 1939 Code could for policy reasons be construed to avoid the unnecessary "wasting" of a loss. Such a construction would be in direct conflict with the statute's general definition of "net income"; under § 122 of the 1939 Code governing loss deductions, there was no phrase like "to which such loss may be carried" to give even a colorable statutory-construction basis to its argument that net income does not include capital gain. The Merrill case obviously does not control construction of the "net income" term as used in § 122 of the 1939 Code. And it would be anomalous in any case to conclude that Congress meant to exclude capital gain income from offsetting a loss deduction with the purpose of avoiding "wasting" a loss deduction, when Congress simultaneously required "waste" of the loss deduction by providing that it must offset tax-exempt interest and depletion income as well as net income. See Internal Revenue Code of 1939 §§ 122(d)(1), (2).
15
See H.R.Rep. No. 1337, 83d Cong., 2d Sess., 27 (1954); S.Rep. No. 1622, 83d Cong., 2d Sess., 31-33 (1954); U.S.Code Cong. & Admin.News 1954, p. 4629; H.R.Conf.Rep. No. 2543, 83d Cong., 2d Sess., 30 (1954), U.S.Code Cong. & Admin.News 1954, p. 5280.
16
See Chartier Real Estate Co. v. Commissioner, 52 T.C. 346.
17
The Chartier holding relied on Weil v. Commissioner, 23 T.C. 424, a case in which the Tax Court had concluded that the express language of the 1939 Code provided for a flat rate of tax on taxable capital gain, unreduced by a loss deduction, as an alternative to the tax imposed upon such gain when it is included in gross income and taxed in the regular manner. An amicus curiae brief filed in the present case urges that this holding be reconsidered on policy grounds should the respondent's argument be rejected, but concedes that the language of § 1201(a)(2) supports the result reached in Weil and applied in Chartier.
18
Section 172(d)(2)(B) provides a further indication that capital gains is properly included in the taxable income that a loss deduction must offset before being carried to a succeeding carryover year. For a noncorporate taxpayer who normally computes his tax liability by deducting 50% of net long-term capital gain under § 1202 of the Code, § 172(d)(2)(B) requires that the full amount of ordinary income plus capital gain be offset against the net operating loss. That "taxable income" encompasses capital gain income for individual taxpayers under § 172 strongly suggests that the "taxable income" of corporate taxpayers should be given similar scope.
1
I use the term "capital gain" to mean the excess of net long-term capital gain over net short-term capital loss.
2
See Weil v. Commissioner, 23 T.C. 424 (1954), aff'd, 229 F.2d 593 (CA6 1956); Chartier Real Estate Co. v. Commissioner, 52 T.C. 346, 350-356 (1969), aff'd, 428 F.2d 474 (CA1 1970).
3
Tr. of Oral Rearg. 8.
4
The parties agree that the carryback served to erase the taxpayer's small net operating income for fiscal 1966.
5
The Court of Appeals, in the present case, also aptly described this policy:
"The basic purpose behind the net operating loss carry back provisions of section 172 is to ameliorate the harsh tax consequences that can result from the necessity of accounting for certain exceptional economic events within the confines of an arbitrary annual accounting period." 500 F.2d, at 1232.
6
Judge Raum, in my view, stated it correctly:
"The computation under the 'regular' method was merely tentative, to determine whether the 'regular' method would produce a smaller tax. Since it did not produce a smaller tax, it was in effect not employed at all as a measure of petitioner's 1962 tax, and under the actual computation used (the 'alternative' method) only $1,115.57 of the net operating loss was absorbed, leaving the remaining $10,342.64 to be carried forward to 1965. This result is required by a proper interpretation of the provisions dealing with carrybacks and carryovers.
"We think it is to exalt form over substance to contend that, since a 'regular' computation was made in order to determine whether the amount of tax resulting therefrom was greater than that produced by the 'alternative' method of computation, and since the net operating loss was deducted in full in the 'regular' method, the entire loss was therefore taken into account in the tax computation, even though the 'alternative' method, to which only $1,115.57 was applied, ultimately produced petitioner's actual tax liability." Chartier Real Estate Co. v. Commissioner, 52 T.C., at 357, 358.
7
Chartier Real Estate Co. v. Commissioner, 52 T.C., at 356-358 (Judge Raum); Mutual Assurance Soc. v. Commissioner, 32 TCM 839, P 73, 177 P-H Memo TC (1973) (Judge Quealy); Axelrod v. Commissioner, 32 TCM 885, P 73, 190 P-H Memo TC (1973) (Judge Featherston); Continental Equities, Inc. v. Commissioner, 33 TCM 812, P 74, 189 P-H Memo TC (1974) (Judge Tannenwald). See Lone Manor Farms, Inc. v. Commissioner, 61 T.C. 436 (1974), aff'd, 510 F.2d 970 (CA3 1975).
8
Olympic Foundry Co. v. United States, 72-1 USTC P 9299 (WD Wash.1972); Naegele v. United States, 73-2 USTC P 9696 (Minn.1973), appeal docketed, No. 73-1921 (CA8); Data Products Corp. v. United States, 74-2 USTC P 9759 (CD Cal.1974).
9
Chartier Real Estate Co. v. Commissioner, 428 F.2d 474 (CA1 1970); Olympic Foundry Co. v. United States, 493 F.2d 1247 (CA9 1974); Foster Lumber Co. v. United States, 500 F.2d 1230 (CA8 1974) (case below); Data Products Corp. v. United States, No. 74-3341 (CA9, Dec. 27, 1974), cert. pending, No. 74-996.
10
Scholarly commentary, however, has not been uniform. See Hawkins, Mechanics of Carrying Losses to Other Years, 14 W.Res.L.Rev. 241, 250-251 (1963), and D. Herwitz, Business Planning 844 (1966), both pre-Chartier. Compare Note, 8 San Diego L.Rev. 442 (1971), Note, 55 B.U.L.Rev. 134 (1975), and May, Net Operating Losses and Capital Gains a Deceptive Combination, 29 Tax Lawyer 121 (1975), with Branda, Net Operating Losses and Capital Gains Some Bizarre Consequences of the Alternative Tax Computation, 28 Tax Lawyer 455 (1975). In the last article the author concludes:
"Chartier and its progeny . . . despite strained reliance on the language of section 172(b)(2) . . . are more soundly based on the policy underlying the favorable treatment of capital gains. . . .
"The reversals of the Tax Court by the Fourth and Sixth Circuits . . . are unconvincing." Id., at 470.
See also Pratt & Scolnick, The Net Operating Loss Deduction: Disagreement Among Circuit Courts Creates Confusion, 53 Taxes 274 (1975); Nagel, Planning to Avoid Wastage of NOL Carryovers: A Lesson from Chartier Realty, 42 J. Taxation 26 (1975).
11
Subsequently, the Sixth Circuit, in a case concerning individual taxpayers, agreed with the Fourth Circuit. Axelrod v. Commissioner, 507 F.2d 884 (1974).
12
See also Remarks of Mr. Justice Stewart at the Dedication of the New Courthouse of the United States Tax Court, 28 Tax Lawyer 451, 453 (1975).
13
Revenue Act of 1939, § 211(b) (adding § 122 to the Internal Revenue Code of 1939), 53 Stat. 867; Revenue Act of 1942, § 153(a), 56 Stat. 847; Revenue Act of 1950, § 215(a), 64 Stat. 937; Internal Revenue Code of 1954, § 172(b), 68A Stat. 63; Technical Amendments Act of 1958, § 203(a), 72 Stat. 1678.
14
The Tax Reform Act of 1976, § 806(a), 90 Stat. 1598, adds to § 172(b)(1) (B) of the Code, as amended, a sentence providing that for any taxable year ending after December 31, 1975, a net operating loss may be carried over for seven years following the loss. This thus increases the carryover period from five to seven years.
15
Until the Tax Reform Act of 1976, § 172(b)(2) read:
"Except as provided in subsections (i) and (j) (not pertinent here), the entire amount of the net operating loss for any taxable year (hereinafter in this section referred to as the 'loss year') shall be carried to the earliest of the taxable years to which (by reason of paragraph (1)) such loss may be carried. The portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried. . . ."
Section 1901(a)(29)(C)(iv) of the 1976 Act, 90 Stat. 1769, replaced the phrase "subsections (i) and (j)" with "subsection (g)."
The words "to which such loss may be carried" first appeared in the 1954 Code. 68A Stat. 63. Apparently there is no committee or other legislative commentary on the addition of these words to § 172(b)(2).
16
The Government's and now the Court's argument that the phrase "to which such loss may be carried" must modify "each of the prior taxable years," and is confined in its modification to that phrase, is surely wrong as a matter of routine statutory construction. This is so because that analysis renders the modifying phrase useless and redundant. The preceding §§ 172(a) and (b)(1) already have directed that the loss be carried, and in the prescribed order, to specified taxable years. There is no additional need for § 172(b)(2) to recite a limitation of the years to which the loss may be carried.
17
Until the Tax Reform Act of 1976, § 172(c) read:
"For purposes of this section, the term 'net operating loss' means (for any taxable year ending after December 31, 1953) the excess of the deductions allowed by this chapter over the gross income. Such excess shall be computed with the modifications specified in subsection (d)."
The parenthetical expression was eliminated by § 1901(a)(29)(B) of the 1976 Act, 90 Stat. 1769.
| 1112
|
429 U.S. 65
97 S.Ct. 342
50 L.Ed.2d 223
PARKER SEAL COMPANY, petitioner,v.Paul CUMMINS
No. 75-478
Supreme Court of the United States
November 2, 1976
On writ of certiorari to the United States Court of Appeals for the Sixth Circuit.
Nov. 2, 1976.
PER CURIAM.
1
The judgment is affirmed by an equally divided Court.
2
Mr. Justice STEVENS took no part in the consideration or decision of this case.
| 23
|
429 U.S. 60
97 S.Ct. 342
50 L.Ed.2d 218
Ewell SCOTT, etc., petitioner,v.KENTUCKY PAROLE BOARD et al
No. 74-6438
Supreme Court of the United States
November 2, 1976
On writ of certiorari to the United States Court of Appeals for the Sixth Circuit.
Nov. 2, 1976.
PER CURIAM.
1
It appearing that petitioner Scott has been granted parole by the Kentucky Parole Board, the judgment of the United States Court of Appeals for the Sixth Circuit is hereby vacated, and the case is remanded to the Court of Appeals for consideration of the question of mootness.
2
So ordered.
3
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice POWELL join, dissenting.
4
The Court granted certiorari to decide whether any constitutionally mandated procedural safeguards apply to parole release hearings. At such a hearing a prisoner may be denied parole, or he may be released subject to specified conditions. The constitutional issue is whether either the outright denial, or the imposition of parole conditions, has the kind of impact on liberty that must be preceded by "due process." The question is extremely important,1 it has been fully briefed and argued and, in my opinion, should now be decided.2
5
The Court postpones decision of the issue by sending the case back to the Court of Appeals for its advice on the question whether the litigation is now moot. This action might appear to be supported by Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350, a case which became moot because the petitioner's sentence terminated prior to our decision, thus entirely eliminating his interest in any controversy with his parole board.3 This case, however, is not moot, as a brief reference to the facts will demonstrate.
6
On July 26, 1974, the petitioner Ewell Scott, filed a complaint alleging that in November 1973 the Kentucky Parole Board denied him parole. He contended that the denial of parole deprived him of liberty without due process of law because the Parole Board had not provided him the procedural safeguards required by the Due Process Clause of the Fourteenth Amendment.4 He sought to represent similarly situated prisoners and requested an injunction requiring the Parole Board to modify its procedures and such other relief as the court might consider appropriate. Without bothering to effect service on the defendants, the District Court dismissed the complaint. The Court of Appeals affirmed in an unreported order and this Court granted certiorari, 423 U.S. 1031, 96 S.Ct. 561, 46 L.Ed.2d 404.
7
On November 26, 1975, shortly prior to our grant of certiorari, the petitioner was paroled. The respondent Board then suggested that the case had become moot. But, as petitioner points out in his reply, he remains subject to significant restraints that might not have been imposed if he had received the kind of hearing that he claims the Constitution requires. The petitioner is on "close parole supervision," a restrictive status entailing parole conditions in addition to those imposed as a routine matter. One special condition requires petitioner to undergo outpatient treatment at a local mental health center. This parole condition imposes a significant restraint on his liberty.
8
Petitioner claims that a fair hearing might have avoided this condition. If the Court should decide this case in his favor on the merits, the Court unquestionably would have power to order the objectionable condition removed unless petitioner is accorded an appropriate hearing. For that reason petitioner retains a direct and immediate interest in the outcome of this litigation, and the Court retains the power to decide the case on the merits. It follows inexorably that the case is not moot. "It is sufficient," as noted in Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125-126, 94 S.Ct. 1694, 40 L.Ed.2d 1, "that the litigant show the existence of an immediate and definite governmental action or policy that has adversely affected and continues to affect a present interest."
9
Although I have no doubt that the mootness issue will be correctly decided after the proceedings on remand have run their course, the remand is nevertheless unfortunate. As dispositions in each of the last three years demonstrate, the underlying issue is one that is capable of repetition, yet review is repeatedly evaded.5 Delay in deciding the merits will affect not only these litigants, but also other pending litigation and parole procedures in every jurisdiction in the country. A suggestion of mootness which this Court can readily decide should not be permitted to have such far-reaching consequences.
10
I respectfully dissent.
1
Its manifest importance is demonstrated by (a) the vast number of parole release decisions that are made every year; (b) the importance of each such decision to the person affected by it; and (c) the extensive litigation, with varying results, which has developed in the federal courts. The conflict in the Circuits over this question is more than evident. Compare the present case, Scott v. Kentucky Parole Board, No. 74-1899 (unpublished order Jan. 15, 1975), in which the Sixth Circuit held that the requirements of due process are not applicable to parole release hearings, with the following: Brown v. Lundgren, 528 F.2d 1050 (C.A.5 1976) (due process does not apply); United States ex rel. Richerson v. Wolff, 525 F.2d 797 (C.A.7 1975) (due process applies to the extent that a written statement of reasons must be given for denial of parole), cert. denied 425 U.S. 914, 96 S.Ct. 1511, 47 L.Ed.2d 764; Bradford v. Weinstein, 519 F.2d 728 (C.A.4 1974) (due process applies), vacated as moot, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350; Childs v. U. S. Board of Parole, 167 U.S.App.D.C. 268, 511 F.2d 1270 (1974) (due process applies to the extent that reasons must be given); United States ex rel. Johnson v. Chairman, New York State Board of Parole, 500 F.2d 925 (C.A.2 1974) (due process applies to the extent that reasons must be given), vacated as moot sub nom. Regan v. Johnson, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289; Scarpa v. U. S. Board of Parole, 477 F.2d 278 (C.A.5 1973) (en banc) (due process does not apply), vacated and remanded to consider mootness, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44, dismissed as moot, 501 F.2d 992 (1973); Menechino v. Oswald, 430 F.2d 403 (C.A.2 1970) (due process does not apply to parole hearings; questioned in United States ex rel. Johnson, supra ), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635. See also Burton v. Ciccone, 484 F.2d 1322 (C.A.8 1973) (parole board must follow its own rules, but implicitly holding that due process does not apply).
2
The briefs and argument fully discuss the mootness issue as well as the merits.
3
The Weinstein opinion is unambiguous:
"It is undisputed that respondent was temporarily paroled on December 18, 1974, and that this status ripened into a complete release from supervision on March 25, 1975. From that date forward it is plain that respondent can have no interest whatever in the procedures followed by petitioners in granting parole." 423 U.S., at 148, 96 S.Ct. 347.
This rationale is, of course, inapplicable to this petitioner who remains in legal custody. See In re Sturm, 11 Cal.3d 258, 264-265, 113 Cal.Rptr. 361, 364-365, 521 P.2d 97, 101 (1974); Ramer v. Saxbe, 173 U.S.App.D.C. 83, 91-92, 522 F.2d 695, 703-704 (1975); Workman v. Mitchell, 502 F.2d 1201, 1208 (C.A.9 1974); Morales v. Schmidt, 489 F.2d 1335, 1336 (C.A.7 1973), adhered to en banc, 494 F.2d 85 (C.A.7 1974). This Court has noted that 35% 45% of all paroles are revoked. See Morrissey v. Brewer, 408 U.S. 471, 479, 92 S.Ct. 2593, 33 L.Ed.2d 484. As long as a parolee faces such odds, he retains a continuing interest in the procedures which will be followed at future parole release hearings.
4
He contends that he should have received the procedural safeguards encompassed in an adjudicatory-type hearing, including notice concerning the issues and information the Board would be considering; access to the file and other information the Board would rely upon; the opportunity to present evidence and arguments to justify release and challenge or interpret evidence already before the Board; representation by an attorney or lay advocate; transcript or summary of testimony from the hearing; and a reasoned decision by the Board. If the Court should hold that the Due Process Clause is applicable, it would not, of course, follow that petitioner would be entitled to all of the claimed safeguards. Cf. Morrissey v. Brewer, supra, 408 U.S. 471, at 488-490, 92 S.Ct. 2593, at 33 L.Ed.2d 484.
5
Scarpa v. U. S. Board of Parole, supra ; United States ex rel. Johnson v. Chairman, New York State Board of Parole, supra ; Bradford v. Weinstein, supra.
| 89
|
429 U.S. 66
97 S.Ct. 345
50 L.Ed.2d 224
Commonwealth of MASSACHUSETTS et al.v.Helen B. FEENEY
No. 76-265
Supreme Court of the United States
November 8, 1976
Nov. 8, 1976.
PER CURIAM.
1
This Court, on its own motion, hereby certifies to the Supreme Judicial Court of the Commonwealth of Massachusetts, pursuant to Rule 3:21 of the Rules of that court, the question of law hereinafter set forth.
Statement of Facts
2
On Feeney against the Massachusetts Director of Civil Service (now designated "Personnel Administrator of the Commonwealth") and members of the Massachusetts Civil Service Commission, declaring unconstitutional the Massachusetts veterans' preference statute, Mass.Gen.Laws c. 31, § 23, and enjoining its enforcement by said state officers. 415 F.Supp. 485 (1976).
3
The Attorney General for the Commonwealth, who appeared for all parties defendant in the District Court, has filed a Jurisdictional Statement in this Court stating, at 1-2, that the same is filed "on behalf of the Personnel Administrator of the Commonwealth and the Massachusetts Civil Service Commission," the state officers against whom the District Court judgment was entered. However, the Personnel Administrator of the Commonwealth and the members of the Civil Service Commission have advised the Clerk of this Court, by letter of September 1, 1976, that "the appeal is without our authorization," that "each of us informed the Attorney General of our request that this matter not be appealed," and that "we request that the Court dismiss the appeal." A stipulation filed in the District Court dated June 21, 1976, signed by the Attorney General and the attorney for appellee, confirms these statements in the letter, and states further that the Governor of the Commonwealth has also requested the Attorney General not to prosecute an appeal.
4
The Attorney General, on October 8, 1976, filed a brief in this Court supporting his authority under state law to docket the appeal.
5
It therefore appears that there are involved in the proceeding before this Court questions of Massachusetts law which may be determinative of such cause, with respect to which there seem to be no clearly controlling precedents in the decisions of the Massachusetts Supreme Judicial Court. Accordingly, this Court desires to certify to the Supreme Judicial Court of Massachusetts, pursuant to Rule 3:21 of its Rules, the following question:
Question Certified
6
Under the circumstances herein presented, does Massachusetts law authorize the Attorney General of the Commonwealth to prosecute an appeal to this Court from the judgment of the District Court without the consent and over the expressed objections of the state officers against whom the judgment of the District Court was entered?
7
Mr. Justice BLACKMUN would dismiss the appeal for want of jurisdiction.
| 89
|
429 U.S. 68
97 S.Ct. 219
50 L.Ed.2d 227
James H. TULLY, Jr., et al., Appellants,v.GRIFFIN, INC.
No. 75-831.
Argued Oct. 4, 1976.
Decided Nov. 9, 1976.
Syllabus
The Tax Injunction Act, 28 U.S.C. § 1341, which prohibits federal district courts from enjoining the assessment, levy, or collection of state taxes where "a plain, speedy and efficient remedy may be had in the courts of such State," held to bar appellee Vermont furniture store's suit in Federal District Court for injunctive relief against allegedly unconstitutional assessment of New York sales taxes on appellee's sales to New York customers, since New York provides a "plain, speedy and efficient" means for redress of appellee's constitutional claims while preserving the right to challenge the amount of taxes due. Despite New York statutes providing that judicial review of an administrative determination shall be a taxpayer's only remedy, other procedures, including a declaratory judgment action, may be used in New York courts when the claim is that the tax is unconstitutional, Ammex Warehouse Co. v. Gallman, 414 U.S. 802, 94 S.Ct. 163, 38 L.Ed.2d 39. Moreover, appellee need not accept as binding the amount of the assessment as a price of challenging the constitutionality of the tax but can obtain a preliminary injunction in state court that will toll the running of the 90-day period within which appellee may challenge such amount at an administrative hearing. Pp. 73-77.
D.C., 404 F.Supp. 738, vacated and remanded.
Thomas P. Zolezzi, Albany, N. Y., for appellants.
R. Paul Wickes, Bennington, Vt., for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
The question in this case is whether New York provides a "plain, speedy and efficient" remedy to an out-of-state corporation that seeks to challenge New York's assessment of sales taxes against it. The United States District Court for the District of Vermont held that New York does not provide such a remedy, and issued a preliminary injunction restraining the collection of the New York taxes. 404 F.Supp. 738. We noted probable jurisdiction of the appeal, 424 U.S. 907, 96 S.Ct. 1099, 47 L.Ed.2d 310.
2
* The appellee, Griffin, Inc., is a Vermont corporation that operates a furniture store in Arlington, Vt., six miles from the New York-Vermont border. It advertises on radio and television and in newspapers that serve the Albany-Schenectady-Troy area of New York, and makes substantial sales at its place of business to customers from that State. It regularly delivers furniture to the New York buyers in its own trucks, and its employees also enter New York on occasion to repair furniture it has sold.
3
In February 1973, the New York Department of Taxation and Finance determined that Griffin was "doing business" in New York and thus was required to collect state and local sales taxes from its New York customers. The Department sent a tax examiner to Vermont to audit Griffin's records, but Griffin refused its consent. Little more happened until March 1975, when the Department reaffirmed its position and advised Griffin that another tax examiner would soon be dispatched for an audit. Griffin responded by filing suit in the United States District Court for the District of Vermont, alleging generally that any assessment, levy, or collection of sales taxes against it would violate the Commerce, Due Process, and Equal Protection Clauses of the United States Constitution, and asking for injunctive relief. A three-judge court was convened.
4
After Griffin again denied the tax examiner access to its records, the Department issued a "Notice of Determination and Demand for Payment of Sales and Use Taxes Due." This assessment, by necessity only an estimate, demanded that Griffin pay $218,085.37 in back taxes, interest, and penalties.1 Griffin moved in the federal court for a preliminary injunction to prevent steps from being taken to collect the taxes and to stay the running of the 90-day period in which it could contest the amount shown in the Notice of Determination.2 The defendant New York tax officials filed a cross-motion to dismiss the action for lack of jurisdiction, claiming that suit was barred by the Tax Injunction Act, 28 U.S.C. § 1341, which provides:
5
"The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State."
6
The District Court rejected this defense, ruling that New York law does not provide Griffin "a plain, speedy and efficient remedy."
7
In reaching this conclusion, the federal court considered first the availability under New York law of direct review of the Notice of Determination. Under New York Tax Law § 1138(a), a taxpayer has 90 days from the receipt of a notice of determination to apply for a hearing before the Tax Commission.3 The Tax Commission's decision after the hearing is judicially reviewable "for error, illegality or unconstitutionality or any other reason whatsoever" in a proceeding under Art. 78 of New York's Civil Practice Law and Rules.4 Before a taxpayer may seek Art. 78 review, however, he must either prepay or post a bond for the amount of the assessment. The court found that Griffin lacked the means to do this. Although the assessment was only a gross estimate, the court assumed that the amount would not be changed unless Griffin submitted to an audit. It ruled that Griffin should not be required to "tur(n) over its books and records to a state whose authority it claims is invalid," and further questioned whether a New York court would entertain an Art. 78 proceeding if Griffin refused to be audited. 404 F.Supp., at 743-745.
8
The District Court then considered the availability of declaratory relief under § 3001 of New York's Civil Practice Law and Rules.5 It viewed this possible avenue of relief as insufficiently "plain, speedy and efficient" because N.Y. Tax Law § 1140 on its face seems to limit review of sales tax liability to the Art. 78 procedure discussed above.6 Although the court took note of substantial federal and New York case law holding that New York's administrative review proceedings are not in fact exclusive where a plaintiff claims that a tax is unconstitutional, the court concluded that the issue was "cloak(ed) . . . in some uncertainty." Even if Griffin could get declaratory relief, the court held, its contacts with New York were so "minimal" that "it seems unfair to make Griffin litigate in an unfamiliar forum." Finally, the court expressed "reservations" about Griffin's ability to get a preliminary injunction pending a New York court's decision in a declaratory judgment suit. 404 F.Supp., at 745-747. On the basis of this reasoning the District Court granted Griffin preliminary injunctive relief.
II
9
A federal district court is under an equitable duty to refrain from interfering with a State's collection of its revenue except in cases where an asserted federal right might otherwise be lost. See Hillsborough v. Cromwell, 326 U.S. 620, 622-623, 66 S.Ct. 445, 447-448, 90 L.Ed. 358; Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 297-299, 63 S.Ct. 1070, 1072-1073, 87 L.Ed. 1407; Matthews v. Rodgers, 284 U.S. 521, 525-526, 52 S.Ct. 217, 219-229, 76 L.Ed. 477. This policy of restraint has long been reflected and confirmed in the congressional command of 28 U.S.C. § 1341 that no injunction may issue against the collection of a state tax where state law provides a "plain, speedy and efficient remedy." As the Court has frequently had occasion to note, the statute has its roots in equity practice, in principles of federalism, and in recognition of the imperative need of a State to administer its own fiscal operations. "Interference with state internal economy and administration is inseparable from assaults in the federal courts on the validity of state taxation, and necessarily attends injunctions, interlocutory or final, restraining collection of state taxes. These are the considerations of moment which have persuaded federal courts of equity to deny relief to the taxpayer especially when the state, acting within its constitutional authority, has set up its own adequate procedure for securing to the taxpayer the recovery of an illegally exacted tax." Great Lakes Dredge & Dock Co. v. Huffman, supra, 319 U.S., at 298, 63 S.Ct., at 1073. See also Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96; Hillsborough v. Cromwell, supra, 326 U.S., at 622-623, 66 S.Ct., at 447-448; Matthews v. Rodgers, supra, 284 U.S., at 525-526, 52 S.Ct., at 219.
10
These principles do not lose their force, and a State's remedy does not become "inefficient," merely because a taxpayer must travel across a state line in order to resist or challenge the taxes sought to be imposed. If New York provides an otherwise adequate remedy, the mere fact that Griffin must go to New York to invoke it does not jeopardize its ability to assert its rights. To accept the District Court's holding that it would be "unfair" to make Griffin litigate in New York would undermine much of the force of 28 U.S.C. § 1341.
11
We turn then to the basic inquiry whether under New York law there is a "plain, speedy and efficient" way for Griffin to press its constitutional claims while preserving the right to challenge the amount of tax due. This Court answered the first part of that question by its summary judgment of affirmance three years ago in Ammex Warehouse Co. v. Gallman, 414 U.S. 802, 94 S.Ct. 163, 38 L.Ed.2d 39. In that case, the New York Tax Commission had assessed state alcoholic beverage, tobacco, and sales taxes against two New York companies that sold cigarettes and liquor to persons about to leave the State to enter Canada. The companies brought suit in Federal District Court, claiming that the assessment of the taxes against them violated the Commerce and Import-Export Clauses of the Constitution. The three-judge District Court held that 28 U.S.C. § 1341 required dismissal of the action. Ammex-Champlain Corp. v. Gallman, 72 Civ. 306 (NDNY, Mar. 15, 1973) (unreported). The court held that "(t)here is ample authority that a declaratory judgment action may be employed to challenge imposition of a tax. . . . Accordingly, Ammex may present its arguments in the state supreme court and seek a declaratory judgment from that court that application of these taxes to Ammex's export operations is unconstitutional."
12
The correctness of that holding was placed squarely before us by the Jurisdictional Statement that the appellants filed in this Court in the Ammex case. This Court's affirmance of the District Court's judgment is therefore a controlling precedent, unless and until re-examined by this Court. Hicks v. Miranda, 422 U.S. 332, 343-345, 95 S.Ct. 2281, 2288-2290, 45 L.Ed.2d 223. Since, however, it was a summary affirmance, it is not here "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. But having now had a full opportunity to consider the issue after briefing and argument, we adhere to our judgment in the Ammex case.
13
The District Court's ruling in that case was fully supported by New York decisional law. Despite the provisions of its taxing statutes that provide that judicial review of an administrative determination shall be a taxpayer's only remedy, the New York courts have consistently held that other procedures, including an action for a declaratory judgment, may be used when the claim is that the tax is unconstitutional. Slater v. Gallman, 38 N.Y.2d 1, 4, 377 N.Y.S.2d 448, 449, 339 N.E.2d 863, 864 (1975); In re First Nat. City Bank v. City of New York Finance Admin., 36 N.Y.2d 87, 92-93, 365 N.Y.S.2d 493, 497, 324 N.E.2d 861, 864 (1975); Richfield Oil Corp. v. City of Syracuse, 287 N.Y. 234, 239, 39 N.E.2d 219, 221 (1942); Dun & Bradstreet, Inc. v. City of New York, 276 N.Y. 198, 206, 11 N.E.2d 728, 731-732 (1937); Hospital TV Sys., Inc. v. State Tax Comm'n, 41 A.D.2d 576, 339 N.Y.S.2d 603 (1973). Thus, we remain fully persuaded that the District Court's holding in Ammex was correct, announced as it was by three New York federal judges "who are familiar with the intricacies and trends of local law and practice," Bishop v. Wood, 426 U.S. 341, 346, n. 10, 96 S.Ct. 2074, 2078, 48 L.Ed.2d 684, quoting Hillsborough v. Cromwell, supra, 326 U.S. 620, at 630, 66 S.Ct. 445, at 451, 90 L.Ed. 358, quoting Huddleston v. Dwyer, 322 U.S. 232, 237, 64 S.Ct. 1015, 1018, 88 L.Ed. 1246.
14
It also seems clear that under New York law Griffin can fully preserve its right to challenge the amount of tax due while litigating its constitutional claim that no tax at all can validly be assessed against it. Griffin, in other words, need not accept as binding the Tax Commission's rough estimate of its sales tax liability as a price of challenging the constitutionality of the tax.
15
The New York Attorney General in his brief and in oral argument has represented to this Court that Griffin can obtain a preliminary injunction in state court that will toll the running of the 90-day period within which Griffin may challenge the amount of the assessment at an administrative hearing.7 Moreover, we have no reason to believe that a New York court, acting sua sponte, would question its ability to award preliminary relief in a proper case.
16
The District Court cited no New York authority for its "reservations" on this score, and we have found none. To the contrary, a New York statute speaks of the availability of a preliminary injunction "in any action" where certain conditions are met. N.Y.Civ.Prac. § 6301 (McKinney 1963). There are New York cases suggesting that courts may award preliminary relief in declaratory judgment actions in general, see, e. g., In re Public Serv. Comm'n v. Norton, 304 N.Y. 522, 529, 109 N.E.2d 705, 708 (1952); Opoliner v. Joint Queensview Housing Enterp., Inc., 11 A.D.2d 1076, 206 N.Y.S.2d 681 (1960), and several New York courts have done so in cases involving the collection of taxes. See, e. g., Stacy v. State, 82 Misc.2d 181, 368 N.Y.S.2d 448 (Sup.Ct.1975) (sales tax); Glen Cove Theatres, Inc. v. City of Glen Cove, 231 N.Y.S.2d 747 (Sup.Ct.1962). See also Dun & Bradstreet, Inc. v. City of New York, supra, 276 N.Y., at 206, 11 N.E.2d, at 731-732 (permanent injunction approved in declaratory judgment action challenging imposition of sales tax). Although we have held that uncertainty concerning a State's remedy may make it less than "plain" under 28 U.S.C. § 1341, see Hillsborough v. Cromwell, 326 U.S., at 625, 66 S.Ct., at 449, these New York precedents convincingly demonstrate that Griffin's fears about the availability of such preliminary relief are unfounded.8
17
Since New York provides a "plain, speedy and efficient" means for the redress of Griffin's constitutional claims, the District Court should not have granted injunctive relief. Its judgment granting Griffin's motion for a preliminary injunction is vacated, and the case is remanded to that court with instructions to dismiss the complaint.
18
It is so ordered.
1
The Department later withdrew this initial Notice of Determination and issued another demanding payment of $298,580.59.
2
See N.Y. Tax Law § 1138(a) (McKinney 1975).
3
New York Tax Law § 1138(a) (McKinney 1975) provides:
"(a) If a return required by this article is not filed, or if a return when filed is incorrect or insufficient, the amount of tax due shall be determined by the tax commission from such information as may be available. If necessary, the tax may be estimated on the basis of external indices, such as stock on hand, purchases, rental paid, number of rooms, location, scale of rents or charges, comparable rents or charges, type of accommodations and service, number of employees or other factors. Notice of such determination shall be given to the person liable for the collection or payment of the tax. Such determination shall finally and irrevocably fix the tax
unless the person against whom it is assessed, within ninety days after giving of notice of such determination, shall apply to the tax commission for a hearing, or unless the tax commission of its own motion shall redetermine the same. After such hearing the tax commission shall give notice of its determination to the person against whom the tax is assessed. The determination of the tax commission shall be reviewable for error, illegality or unconstitutionality or any other reason whatsoever by a proceeding under article seventy-eight of the civil practice law and rules if application therefor is made to the supreme court within four months after the giving of the notice of such determination. A proceeding under article seventy-eight of the civil practice law and rules shall not be instituted unless the amount of any tax sought to be reviewed, with penalties and interest thereon, if any, shall be first deposited with the tax commission and there shall be filed with the tax commission an undertaking, issued by a surety company authorized to transact business in this state and approved by the superintendent of insurance of this state as to solvency and responsibility, in such amount as a justice of the supreme court shall approve to the effect that if such proceeding be dismissed or the tax confirmed the petitioner will pay all costs and charges which may accrue in the prosecution of the proceeding, or at the option of the applicant such undertaking filed with the tax commission may be in a sum sufficient to cover the taxes, penalties and interest thereon stated in such determination plus the costs and charges which may accrue against it in the prosecution of the proceeding, in which event the applicant shall not be required to deposit such taxes, penalties and interest as a condition precedent to the application."
4
N.Y.Civ.Prac.Law, Art. 78, § 7801 et seq. (McKinney 1963).
5
New York Civ.Prac.Law, § 3001 (McKinney 1974) provides:
"The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. . . ."
6
New York Tax Law § 1140 (McKinney 1975) provides:
"The remedies provided by sections eleven hundred thirty-eight and eleven hundred thirty-nine shall be exclusive remedies available to any person for the review of tax liability imposed by this article; and no determination or proposed determination of tax or determination on any application for refund shall be enjoined or review by any action for declaratory judgment, an action for money had and received, or by any action or proceeding other than a proceeding under article seventy-eight of the civil practice law and rules."
7
Although acknowledging a New York court's power to issue a preliminary injunction in these circumstances, the Attorney General remains free, of course, to oppose the granting of such relief in any particular case.
8
As we conclude that Griffin has an adequate remedy in a suit for a declaratory judgment, we need not decide whether judicial review under N.Y.Civ.Prac. Art. 78 would also be "plain, speedy and efficient."
| 89
|
429 U.S. 78
97 S.Ct. 274
50 L.Ed.2d 236
Minor MOODY, Petitioner,v.Loren DAGGETT, Warden.
No. 74-6632.
Argued Oct. 12, 1976.
Decided Nov. 15, 1976.
Syllabus
Petitioner federal parolee, imprisoned for federal crimes committed while on parole and clearly constituting parole violations, held not to be constitutionally entitled to an immediate parole revocation hearing, where a parole violator warrant was issued and lodged with the institution of his confinement as a "detainer" but was not executed. Pp. 85-89.
(a) Petitioner's present confinement and consequent liberty loss do not derive from the parole violator warrant but from his convictions for the crimes committed while on parole. Execution of a parole violator warrant and custody thereunder are the operative events triggering any loss of liberty attendant upon parole revocation. Morrissey v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484. P. 85-87.
(b) Deferral of the parole revocation decision until execution of the parole violator warrant does not deprive petitioner of the opportunity to serve any sentence imposed for parole violation concurrently with the sentences imposed for the crimes committed while on parole, since if the Parole Commission chooses to revoke parole, it has the power to grant, retroactively, the equivalent of concurrent sentences and to provide for unconditional or conditional release upon completion of the subsequent sentences. Pp. 87-88.
(c) Issuance of the parole violator warrant, without more, did not diminish petitioner's opportunity for parole on his intervening sentences, since the same Commission that will consider such parole will decide whether to revoke parole granted under the earlier conviction, and since the statutory hearing to which petitioner will be entitled upon his application for parole will give him the same opportunity to persuade the Commission that he should be released from custody as would an immediate hearing on the parole violator warrant. P. 88.
(d) As a practical matter, in cases such as this, in which the parolee has been convicted of an offense plainly constituting a parole violation, a decision to revoke parole would often be foreordained, so that given the predictive nature of the parole revocation hearing, it is appropriate that such hearing be held at the time at which prediction as to the parolee's ability to live in society without committing antisocial acts is both most relevant and most accurate at the expiration of the parolee's intervening sentence. P. 89.
Affirmed.
Phylis Skloot Bamberger, New York City, for petitioner.
Frank H. Easterbrook, Washington, D. C., for respondent, pro hac vice, by special leave of Court.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in this case to decide whether a federal parolee imprisoned for a crime committed while on parole is constitutionally entitled to a prompt parole revocation hearing when a parole violator warrant is issued and lodged with the institution of his confinement but not served on him.1
(1)
2
In 1962 petitioner was convicted in the United States District Court for the District of Arizona of the crime of rape on an Indian reservation, in violation of 18 U.S.C. § 1153. There was no appeal, and petitioner received a 10-year prison sentence. He was paroled in 1966 with almost six years remaining to be served. While on parole, petitioner shot and killed two persons on the Fort Apache Indian Reservation. He was convicted on a guilty plea of manslaughter as to one victim and second-degree murder as to the other, for violations of 18 U.S.C. § 1153; he received concurrent 10-year sentences for these two offenses. These crimes constituted obvious violations of the terms of petitioner's 1966 parole. See 18 U.S.C. § 4203(a) (1970 ed. and Supp. V).
3
Soon after petitioner's incarceration for the two homicides, the United States Board of Parole issued but did not execute a parole violator warrant; this was lodged with prison officials as a "detainer."2 Petitioner requested the Board to execute the warrant immediately so that any imprisonment imposed for violation of his earlier parole under the rape conviction could run concurrently with his 1971 homicide sentences. The Board replied that it intended to execute the warrant only upon petitioner's release from his second sentence. At its 1974 annual review of petitioner's case, the Board reaffirmed its decision to allow the warrant to remain unexecuted.
4
Relying on Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), petitioner began this federal habeas corpus action in January 1975, seeking dismissal of the parole violator warrant on the ground that he had been denied a prompt hearing at which the pending parole revocation issues could be aired.
5
The District Court dismissed the petition without awaiting a responsive pleading, stating:
6
"(A) parole revocation hearing is not required until the parole violator warrant has been executed. The parole board is under no obligation to execute the warrant inasmuch as petitioner has been in custody on his 1971 manslaughter (and murder) sentence(s) since the time the warrant was issued and filed as a detainer against him."3
7
The Court of Appeals affirmed, relying on its earlier holding in Small v. Britton, 500 F.2d 299 (CA10 1974), in which that court had held that an incarcerated parolee is deprived of no liberty interest by the lodging of a detainer against him, and is thus entitled to no due process safeguards unless and until the parole violator warrant is actually executed.
(2)
8
The Parole Commission and Reorganization Act, Pub.L. 94-233, 90 Stat. 219 et seq., was enacted shortly after we granted certiorari. The Act renamed the Board the Parole Commission and made other changes in federal parole procedures, principally to codify the Board's existing practices.4 Throughout the progress of this case below, however, parole revocation procedures were controlled by the former statutes, 18 U.S.C. §§ 4205 and 4207.5 Under them, and the Board's own regulations, 28 CFR § 2.53 (1975),6 it was the Board's practice to issue a parole violator warrant as a matter of course whenever a federal parolee was convicted of a new offense. Under the former statute and regulations, if the subsequent sentence called for incarceration the warrant was lodged at the institution of confinement as a detainer, for possible later service. A parolee so confined was then notified of the issuance of the unserved warrant and given the opportunity to make a written response. Upon receipt of the response the Board was authorized, in its discretion, to conduct a dispositional interview designed to get the facts relevant to its revocation decision. The parolee could retain counsel for the interview and call witnesses. In lieu of an interview, the Board in its discretion could review the parolee's case based on the record and the written response.
9
After review or interview the Board had three options for disposing of its parole violator warrant:
10
(a) It could execute the warrant immediately and take the parolee into custody. If parole was revoked at that stage, the remainder of the parolee's original federal sentence, reinstated by the parole revocation, would run concurrently with the subsequent sentence from the time of execution of the warrant. 18 U.S.C. § 4205. Execution of the warrant deprived the parolee of any good-time credits he might have previously earned of his original sentence under 18 U.S.C. § 4161, and of credit for the time spent while on parole. 18 U.S.C. § 4205; 28 CFR § 2.51 (1975).
11
(b) The Board's second option was to dismiss the warrant and detainer altogether, which operated as a decision not to revoke parole, and under which the parolee retained both his good-time credit and credit for the time spent on parole. Presumably dismissal of the warrant would reflect a Board decision that the violation of conditions of parole was not of such gravity as to justify revocation.
12
(c) Third, the Board was free to defer a final decision on parole revocation until expiration of the subsequent sentence, as it elected to do in this case; under this third option, the Board was authorized to execute the warrant, take the parolee into custody immediately upon his release, and then conduct a revocation hearing. Deferral of decision while permitting the warrant to stand unexecuted would operate to allow the original sentence to remain in the status it occupied at the time of the asserted parole violation, 18 U.S.C. § 4205; it would not deprive the parolee either of his good time or of the time spent on parole.
13
Respondent represents that the Board's general practice, before passage of the 1976 Act, was to defer decision in order to have before it the parolee's institutional record during his confinement on the subsequent offense. That record would obviously be highly relevant to the parole revocation decision. Annual reviews of the status of every parolee to whom it had not granted a dispositional interview were conducted under the former statute.
14
The 1976 Act and accompanying regulations, 28 CFR § 2.1 et seq. (1976), incorporate the former procedures with few modifications. Under current law, the Parole Commission reviews the parole violator warrant within 180 days of its issuance, 18 U.S.C. § 4214(b)(1) (1976 ed.); the parolee, after notification of the impending review, is now entitled to assistance of appointed counsel, if requested, in preparing his written response. 18 U.S.C. § 4214(a)(2)(B) (1976 ed.). The 1976 Act also abolishes the annual status review formerly required. Previously it was general practice to defer execution of the warrant to completion of the subsequent sentence. It is now firm Commission policy that unless "substantial mitigating circumstances" are shown, the parole violator term of a parolee convicted of crime is to run consecutively to the sentence imposed for the subsequent offense. 28 CFR § 2.47(c) (1976).
15
Petitioner asserts protected liberty interests in both the length and conditions of his confinement. Those interests, he argues, are disregarded in several respects by issuance against him of an unexecuted parole violator warrant, which bars him from serving his 1962 rape conviction sentence concurrently with his 1971 homicide sentences, retards his parole eligibility on the later convictions, and adversely affects his prison classification status. He argues that lack of a prompt hearing risks the loss of evidence in mitigation which might induce the Board not to revoke his parole. Respondent's position is that whatever process may eventually be due petitioner, the mere issuance of a parole violator warrant works no present deprivation of protected liberty sufficient to invoke due process protection.
16
(3)
17
In Morrissey, we held that the conditional freedom of a parolee generated by statute is a liberty interest protected by the Due Process Clause of the Fourteenth Amendment which may not be terminated absent appropriate due process safeguards. The revocation hearing mandated by Morrissey7 is bottomed on the parallel interests of society and the parolee in establishing whether a parole violation has occurred and, if so, whether under all the circumstances the quality of that violation calls for parole revocation. The issue before us here, however, is not whether a Morrissey -type hearing will ever be constitutionally required in the present case,8 but whether a hearing must be held at the present time, before the parolee is taken into custody as a parole violator. We hold that there is no requirement for an immediate hearing.
18
Petitioner's present confinement and consequent liberty loss derive not in any sense from the outstanding parole violator warrant, but from his two 1971 homicide convictions. Issuance of the warrant and notice of that fact to the institution of confinement did no more than express the Board's intent to defer consideration of parole revocation to a later time. Though the gravity of petitioner's subsequent crimes places him under a cloud, issuance of the warrant was not a determination that petitioner's parole under his 1962 rape conviction will be revoked; the time at which the Commission must make that decision has not yet arrived. With only a prospect of future incarceration which is far from certain, we cannot say that the parole violator warrant has any present or inevitable effect upon the liberty interests which Morrissey sought to protect. Indeed, in holding that "(t)he revocation hearing must be tendered within a reasonable time after the parolee is taken into custody," Morrissey, 408 U.S., at 488, 92 S.Ct., at 2603, we established execution of the warrant and custody under that warrant as the operative event triggering any loss of liberty attendant upon parole revocation. This is a functional designation, for the loss of liberty as a parole violator does not occur until the parolee is taken into custody under the warrant. Cf. 18 U.S.C. § 4206; 18 U.S.C. § 4213(d) (1976 ed.).
19
The other injuries petitioner claims to suffer either do not involve a loss of protected liberty or have not occurred by reason of the warrant and detainer. His real complaint is that he desires to serve his sentence for the 1962 rape conviction concurrently with his sentences for two 1971 homicides. But, as we have noted, even after completion of the homicide sentences the Commission retains full discretion to dismiss the warrant or decide, after hearing, that petitioner's parole need not be revoked. If revocation is chosen, the Commission has power to grant, retroactively, the equivalent of concurrent sentences and to provide for unconditional or conditional release upon completion of the subsequent sentence. See 18 U.S.C. §§ 4211, 4214(d) (1976 ed.); 28 CFR §§ 2.21, 2.52(c)(2) (1976). Thus, deferral of the revocation decision does not deprive petitioner of any such opportunity; nothing in the statute or regulations gives him any "right" to force the decision of the Commission at this time.9
20
Petitioner also argues that issuance of a parole violator warrant, without more, diminishes his opportunity for parole on his intervening sentence. Assuming for the moment that granting of parole is a protected liberty interest which this warrant impinges, this argument fails to take into account that here the same Commission which will consider petitioner's parole under his 1971 homicide convictions will decide whether to revoke parole granted under the 1962 conviction. The statutory hearing to which petitioner will be entitled upon his application for release on parole will give him the same full opportunity to persuade the Commission that he should be released from federal custody as would an immediate hearing on the parole violator warrant. Whether different issues would be presented by the prospect of adverse action by different and autonomous parole authorities, we need not consider.
21
Finally, there is a practical aspect to consider, for in cases such as this, in which the parolee admits or has been convicted of an offense plainly constituting a parole violation, the only remaining inquiry is whether continued release is justified notwithstanding the violation. This is uniquely a "prediction as to the ability of the individual to live in society without committing antisocial acts." Morrissey, supra, at 480, 92 S.Ct. at 2599. In making this prophecy, a parolee's institutional record can be perhaps one of the most significant factors. Forcing decision immediately after imprisonment would not only deprive the parole authority of this vital information, but since the other most salient factor would be the parolee's recent convictions, here a double homicide, a decision to revoke parole would often be foreordained. Given the predictive nature of the hearing, it is appropriate that such hearing be held at the time at which prediction is both most relevant and most accurate at the expiration of the parolee's intervening sentence.
22
Accordingly, and without regard to what process may be due petitioner before his parole may be finally revoked, we hold that he has been deprived of no constitutionally protected rights simply by issuance of a parole violator warrant. The Commission therefore has no constitutional duty to provide petitioner an adversary parole hearing until he is taken into custody as a parole violator by execution of the warrant.
23
Affirmed.
24
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN joins, dissenting.
25
The Court holds that the lodging of a detainer with an institution in which a parolee is confined does not have the kind of impact on his custodial status that requires a due process hearing. That holding does not answer the question which I regard as critical in this case. For it is clear that sooner or later a parole revocation hearing will be held; the question is whether the timing of that hearing is an element of the procedural fairness to which the parolee is constitutionally entitled. I am persuaded that it is.
26
I start from the premise that parole revocation is a deprivation of liberty within the meaning of the Fifth and Fourteenth Amendments and therefore must be preceded by due process. The Court so held in Morrissey v. Brewer, 408 U.S. 471, 481-483, 92 S.Ct. 2593, 2600-2601, 33 L.Ed.2d 484. In that case the revocation resulted in the return of the parolee to prison whereas in this case the parolee is already incarcerated for a separate offense. But in both situations the revocation affects the length of his confinement and therefore may result in a "grievous loss" of liberty.1 Accordingly, it is clear and I do not understand the Court to disagree, see ante, at 85-86, 89, that the parolee's constitutional right to have the revocation hearing conducted fairly is not affected by his custodial status.2 Moreover, since the parole revocation process begins when the Parole Commission issues the revocation warrant,3 it plainly follows that the constitutional protections afforded the parolee attach at that time. The question, then, is whether the parolee's right to a fair hearing includes any right to have the hearing conducted with reasonable dispatch.
27
It is apparently the position of the Parole Commission that it has no obligation to go forward with the revocation hearing until after the parolee has completed the service of his sentence for the second offense.4 It may therefore wait as long as 10 or 20 years after commencing the revocation process by issuing a warrant. This position, I submit, can be tenable only if one assumes that the constitutional right to a fair hearing includes no right whatsoever to a prompt hearing. Precedent, tradition, and reason require rejection of that assumption.
28
In Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1, the Court held that the States were required by the Due Process Clause of the Fourteenth Amendment to provide a defendant with a prompt hearing because the right to a speedy trial "is one of the most basic rights preserved by our Constitution." That holding rested in part on common-law tradition of such a fundamental nature as to be reflected in the Magna Carta itself.5 In that case, Mr. Justice Harlan, though disagreeing with the view that the "speedy trial" provision of the Sixth Amendment was directly applicable to the States, concurred with the conclusion that a state procedure "which in effect allows state prosecuting officials to put a person under the cloud of an unliquidated criminal charge for an indeterminate period, violates the requirement of fundamental fairness assured by the Due Process Clause of the Fourteenth Amendment." Id., at 227, 87 S.Ct. at 995.
29
The common-law tradition that supports both the Court's holding and Mr. Justice Harlan's separate concurrence in Klopfer,6 also requires respect for a parolee's interest in the reasonably prompt disposition of charges pending against him, regardless of whether or not he is incarcerated.
30
This Court has already held that present incarceration for one offense does not deprive an inmate of his right to a prompt trial on a second charge. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607; Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56. Moreover, the Court has made it clear that the constitutional protection applies not only to the determination of guilt but also to the discretionary decision on what disposition should be made of the defendant. This point was squarely decided with respect to parole revocation in Morrissey v. Brewer.7 And in Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393, the Court, though rejecting the particular claim, recognized that a defendant's right to a speedy trial included a right to a prompt sentencing determination. The entire Court subscribed to the view that delay in regard to disposition "must not be purposeful or oppressive." Id., at 361, 77 S.Ct. at 486. That view contrasts sharply with the Parole Commission's conscious policy of delaying parole revocation decisions under these circumstances.
31
Those holdings recognize the defendant's legitimate interest in changing the uncertainty associated with a pending charge into the greater certainty associated with its disposition.8 In the words of a former director of the Federal Bureau of Prisons that were quoted by the Court in Smith, supra, 393 U.S. at 379, 89 S.Ct. at 577-578, the " 'anxiety and concern' " which accompany unresolved charges have as great an impact on the incarcerated as on those at large.9
32
"(I)t is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into . . . custody . . . at the conclusion interferes with the prisoner's ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination toward self-improvement."10
33
Although those comments were directed at the prisoner's right to a prompt trial on a second criminal charge, they are also applicable to the incarcerated parolee's interest in a reasonably prompt revocation hearing.
34
Under the respondent's position, the petitioner's hearing may come as much as 10 years after his intervening conviction. It is unlikely that such a delayed hearing would focus on the question whether facts in mitigation existed at the time of commission of the intervening offense; rather, the primary inquiry would no doubt be directed at the question whether petitioner made satisfactory institutional progress in the service of his intervening sentence to justify his return to society. That is the sort of inquiry that would in any event be appropriate in a parole release hearing. In short, a prolonged delay will inevitably change the character of the revocation hearing. If unlimited delay is permitted, the procedural safeguards which were fashioned in Morrissey to assure the parolee a fair opportunity to presents facts in mitigation and to challenge the government's assertions will have become meaningless. Delay will therefore violate the "fundamental requirement of due process" "the opportunity to be heard 'at a meaningful time and in a meaningful manner.' " Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62.
35
Petitioner argues that the detainer itself is the source of his grievous loss which mandates a hearing. That is not my view. In my judgment the detainer is comparable to an arrest or an indictment which identifies a time when it is clear that the government has a basis for going forward with appropriate proceedings and from which the right to a speedy determination accrues.11 Since I believe the right to orderly procedure leading to a reasonably prompt decision is a fundamental attribute of due process, I cannot accept the conclusion that the right is vindicated by simply lodging a detainer and letting it remain outstanding for year after year while the prisoner's interest in knowing where he stands may be entirely ignored.12
36
I therefore respectfully dissent.
1
This constitutional issue has divided the Courts of Appeals. Three of the Circuits have concluded that a parolee convicted of crime committed while on parole is entitled to a due process hearing promptly upon issuance of the parole violator warrant and detainer. Jones v. Johnston, 175 U.S.App.D.C. 151, 534 F.2d 353 (1976), cert. pending sub nom. Sigler v. Byrd, No. 76-355; United States ex rel. Hahn v. Revis, 520 F.2d 632 (CA7 1975), mandate recalled, No. 74-1057 (Aug. 27, 1975); Cleveland v. Ciccone, 517 F.2d 1082 (CA8 1975). Other Circuits have held that no due process requirements attach at this time. Reese v. U. S. Bd. of Parole, 530 F.2d 231 (CA9 1976), cert. pending sub nom. Reese v. U. S. Parole Comm'n, No. 75-6703; Gaddy v. Michael, 519 F.2d 669 (CA4 1975), cert. pending No. 75-5215; Orr v. Saxbe, No. 74-341 (MD Pa. Nov. 27, 1974), aff'd without opinion, 517 F.2d 1399 (CA3 1975), cert. pending sub nom. Orr v. Levi, No. 75-5594; Colangelo v. U. S. Bd. of Parole, No. 74-251 (WD Ohio, Dec. 11, 1974), aff'd without opinion, 517 F.2d 1404 (CA6 1975); Small v. Britton, 500 F.2d 299 (CA10 1974); Cook v. U. S. Attorney General, 488 F.2d 667 (CA5), cert. denied, 419 U.S. 846, 95 S.Ct. 81, 42 L.Ed.2d 75 (1974).
2
A detainer in this context is an internal administrative mechanism to assure that an inmate subject to an unexpired term of confinement will not be released from custody until the jurisdiction asserting a parole violation has had an opportunity to act in this case by taking the inmate into custody or by making a parole revocation determination. When two autonomous jurisdictions are involved, as for example when a federal detainer is placed against an inmate of a state institution, a detainer is a matter of comity.
3
Civ.Action No. 75-28-C3 (Kan., Jan. 29, 1975).
4
The Commission's newly promulgated rule, 28 CFR § 2.57 (1976), validates any order of the Board entered prior to May 14, 1976 (the Act's effective date).
5
Title 18 U.S.C. § 4205 provided:
"A warrant for the retaking of any United States prisoner who has violated his parole may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve."
Title 18 U.S.C. § 4207 provided:
"A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board.
"The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof.
"If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced."
6
"(a) In those instances where the prisoner is serving a new sentence in an institution, the warrant may be placed there as a detainer. Such prisoner shall be advised that he may communicate with the Board relative to disposition of the warrant, and may request that it be withdrawn or executed so his violator term will run concurrently with the new sentence. Should further information be deemed necessary, the Regional Director may designate a hearing examiner panel to conduct a dispositional interview at the institution where the prisoner is confined. At such dispositional interview the prisoner may be represented by counsel of his own choice and may call witnesses in his own behalf, provided he bears their expenses. He shall be given timely notice of the dispositional interview and its procedure.
"(b) Following the dispositional review the Regional Director may:
"(1) Let the detainer stand
"(2) Withdraw the detainer and close the case if the expiration date has passed;
"(3) Withdraw the detainer and reinstate to supervision; thus permitting the federal sentence time to run uninterruptedly from the time of his original release on parole or mandatory release.
"(4) Execute warrant, thus permitting the sentence to run from that point in time. If the warrant is executed, a previously conducted dispositional interview may be construed as a revocation hearing.
"(c) In all cases, including those where a dispositional interview is not conducted, the Board shall conduct annual reviews relative to the disposition of the warrant. These decisions will be made by the Regional Director. The Board shall request periodic reports from institution officials for its consideration."
7
In the present case, where petitioner has already been convicted of and incarcerated on a subsequent offense, there is no need for the preliminary hearing which Morrissey requires upon arrest for a parole violation. This is so both because the subsequent conviction obviously gives the parole authority "probable cause or reasonable ground to believe that the . . . parolee has committed acts that would constitute a violation of parole conditions," 408 U.S., at 485, 92 S.Ct. at 2602, and because issuance of the warrant does not immediately deprive the parolee of liberty. The 1976 Act calls for no preliminary hearing in such cases. 18 U.S.C. § 4214(b)(1) (1976 ed.); see 28 CFR § 2.48(f) (1976).
8
Congress has provided a statutory right to a parole revocation hearing along Morrissey lines even where the parolee "knowingly and intelligently admits violation" of the terms of his parole, or has been convicted of a crime committed while on parole and is therefore barred from relitigating facts constituting a parole violation. 18 U.S.C. § 4214(c), (d) (1976 ed.); see Morrissey, supra, at 490, 92 S.Ct., at 2604. At the hearing the parolee may present evidence addressed to whether, given his admitted violation, circumstances exist justifying his continued release on parole. 28 CFR § 2.50 (1976). Petitioner will be entitled to this statutory hearing within 90 days after execution of the warrant. 18 U.S.C. § 4214(c) (1976 ed.).
9
Petitioner further claims that evidence of mitigation may be lost if the revocation hearing is not held promptly, but he makes no claim that there is additional evidence in his case which may be vitiated by a delay. Had such claims been made, the Commission has the power, as did the Board before it, to conduct an immediate hearing at which petitioner can preserve his evidence. 18 U.S.C. § 4214(b)(2) (1976 ed.); 28 CFR § 2.47 (1976).
Petitioner also argues that the pending warrant and detainer adversely affect his prison classification and qualification for institutional programs. We have rejected the notion that every state action carrying adverse consequences for prison inmates automatically activates a due process right. In Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d ——(1976), for example, no due process protections were required upon the discretionary transfer of state prisoners to a substantially less agreeable prison, even where that transfer visited a "grievous loss" upon the inmate. The same is true of prisoner classification and eligibility for rehabilitative programs in the federal system. Congress has given federal prison officials full discretion to control these conditions of confinement, 18 U.S.C. § 4081, and petitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due process.
1
In Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935, the Court held that loss of "good-time credits" was a deprivation of liberty which required due process protections because the loss of credits could lengthen confinement.
"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." Ibid.
Similarly, as the Seventh Circuit held in United States ex rel. Miller v. Twomey, 479 F.2d 701, 715 (1973): "The time when an inmate may enjoy liberty is directly affected by the disallowance of statutory good time. . . . The cancellation of such credits thus inflicts the same kind of 'grievous loss' on the prisoner as does the revocation of parole (citing Morrissey )."
2
The status of the incarcerated parolee is comparable to that of a defendant on trial for one offense who is already imprisoned for another. Cf. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607; Strunk v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56.
3
The issuance of a parole revocation warrant suspends the running of a convict's sentence and parole until final disposition of the parole violation charges may be made by the Commission. 28 CFR § 2.44(d) (1976). The issuance of the warrant must be considered the commencement of the parole revocation process, since suspension of the running of a parolee's sentence could not otherwise be justified. Thus, the due process protections, which the Court has held apply to the parole revocation process, Morrissey, attach at that time.
4
The majority suggests that under the prior law, which has governed this case since its filing, the Parole Board if it revoked parole as to a parolee while he was incarcerated on an intervening sentence, would be required to make the service of both sentences concurrent. See ante, at 83-84, citing 18 U.S.C. § 4205. I do not read § 4205 as placing such a restriction on the Board's discretion, but even if it did, such a statutory provision does not affect the constitutional question. Moreover, whatever the effect of § 4205, this statute has been overridden by the Parole Commission and Reorganization Act, Pub.L. 94-233, 90 Stat. 219. Thus, 18 U.S.C. § 4210(b)(2) (1976 ed.) now expressly allows the Commission to determine whether the two sentences will be served "concurrently or consecutively."
5
As the Court noted, 386 U.S. at 224, 87 S.Ct. at 994, the Magna Carta as interpreted by Sir Edward Coke guaranteed to all speedy justice.
"In (Coke's) explication of Chapter 29 of the Magna Carta, he wrote that the words 'We will sell to no man, we will not deny or defer to any man either justice or right' had the following effect:
" 'And therefore, every subject of this realme, for injury done to him in bonis, terris, vel persona, by any other subject, be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay.' " Quoting E. Coke, 2 Institutes 55 (Brooke, 5th ed. 1797).
The opinion in Klopfer, 386 U.S. at 225-226, n. 21, 87 S.Ct. at 995, also notes that the Massachusetts Constitution of 1780, Part I, Art. XI, provided:
" 'Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.' "
6
"To support that conclusion I need only refer to the traditional concepts of due process set forth in the opinion of THE CHIEF JUSTICE." 386 U.S. at 227, 87 S.Ct. at 995.
7
"There must also be an opportunity for a hearing, if it is desired by the parolee, prior to the final decision on revocation by the parole authority. This hearing . . . must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation." 408 U.S. at 487-488, 92 S.Ct. at 2603.
8
The prisoner also has an interest in disposing of detainers because they may affect the conditions and extent of his custody. "(U)nder procedures now widely practiced, the duration of (a prisoner's) present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him." Smith v. Hooey, 393 U.S. at 378, 89 S.Ct. at 577.
Moreover, the Court in Smith quoted a former director of the Federal Bureau of Prisons as writing:
" 'Today the prisoners with detainers are evaluated individually but there remains a tendency to consider them escape risks and to assign them accordingly. In many instances this evaluation and decision may be correct, for the detainer can aggravate the escape potentiality of a prisoner.' Bennett, 'The Last Full Ounce,' 23 Fed.Prob. No. 2, p. 20, at 21 (1959)." Id., at 379, n. 8, 89 S.Ct. at 577 n. 8.
Under present Bureau of Prisons' policy, a detainer will not preclude a more lenient classification of a prisoner, but "the seriousness of a detainer must be considered when custody reductions are considered." Bureau of Prisons, Policy Statement 7300.112 P 4 (Apr. 8, 1976). See also Bureau of Prisons, Policy Statement 7500.72 P 4 (May 8, 1972).
It should be noted that if a prisoner would rather face the uncertainty and restrictions which might occur because of an outstanding detainer in hopes that the Commission would prove more lenient at a later revocation hearing, he could certainly waive his right to a prompt hearing.
9
The Bureau of Prisons recognizes the detriments created by allowing detainers to remain unexecuted.
"Because uncertainty as to status can have an adverse effect on our efforts to provide offenders with correctional services, we should encourage detaining authorities to dispose of pending untried charges against offenders in federal custody.
"The casework staff at all institutions may cooperate with and give assistance to offenders in their efforts to have detainers against them disposed of, either by having the charges dropped, by restoration to probation, or parole status or by arrangement for concurrent service of the state sentence.
"The presence of a detainer oftentimes has a restricting effect on efforts to involve the offender in correctional programs. For this reason, caseworkers at federal institutions are expected to assist offenders in their efforts to have detainers disposed of." Bureau of Prisons, Policy Statement 7500.14A (Jan. 7, 1970).
10
Bennett, The Last Full Ounce, 23 Fed.Prob. No. 2, pp. 20, 21 (1959).
11
By emphasizing the fact that the filing of a warrant starts the parole revocation process, I do not mean to imply that the parolee's right to a prompt revocation hearing should depend upon the filing of a warrant. If the Commission has full notice of a parolee's intervening conviction, it should not be permitted to wait until the termination of the intervening sentence to act. Compare United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (holding that due process places some restraints on government delay in bringing an indictment) with Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (a speedy trial case).
12
I do not imply that the parole authorities actually discharge their responsibilities in such a heartless manner. But I cannot accept a constitutional holding that would permit them to do so.
I should also make clear that I would not prescribe any inflexible rule that the hearing must always take place within a fixed period. Nor would I require that the prisoner's interest in a reasonably prompt determination of his status always mandate a personal appearance either at the place of his incarceration or at the place where the parole board normally sits. If justification for the revocation is established by a new conviction, there would seldom be need for a hearing on the discretionary aspects of revocation certainly not unless strong mitigating circumstances were identified. But the fact that the prisoner has only a slight chance of prevailing on the merits does not justify a total rejection of his interest in a prompt disposition. Moreover, if, as respondent contends, delay will sometimes be in the parolee's best interest, the parolee could always waive his right to a prompt hearing.
| 34
|
429 U.S. 118
97 S.Ct. 514
50 L.Ed.2d 269
Raymond BELCHER, petitioner,v.Casey D. STENGEL et al
No. 75-823
Supreme Court of the United States
November 30, 1976
On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit.
Nov. 30, 1976.
PER CURIAM.
1
This case grew out of a barroom affray in Columbus, Ohio, in the course of which the petitioner, an off-duty Columbus police officer, shot and killed two people and permanently disabled a third. The injured victim and the representatives of the deceased victims, who are the respondents here, brought an action against the petitioner in a Federal District Court under 42 U.S.C. § 1983.1 A jury awarded them monetary damages, and the judgment based upon that verdict was affirmed by the United States Court of Appeals for the Sixth Circuit. 522 F.2d 438.
2
The petition for certiorari, which we granted on April 5, 1976, 425 U.S. 910, 96 S.Ct. 1505, 47 L.Ed.2d 760, presented a single question:
3
"Does the fact that an off-duty police officer, out of uniform, is required by police department regulation to carry a weapon at all times, establish that any use of that weapon against the person of another, even though the officer is engaged in private conduct at the time, (is) an act 'under color of law' within the meaning of 42 U.S.C. § 1983?"2
4
The case having now been fully briefed and orally argued, it appears that the question framed in the petition for certiorari is not in fact presented by the record now before us. For in addition to the said police department regulation, there was evidence before the jury that showed: (1) The petitioner had been awarded workmen's compensation benefits for the injuries he had received in the affray, on the ground that the injuries had been incurred in the course of his employment; (2) the petitioner, after the affray, had been granted official leave on account of injuries received "in line of duty under circumstances relating to Police duties"; (3) a Board of Inquiry convened to investigate the barroom episode had determined that the petitioner's "actions were in the line of duty."
5
Now that plenary consideration has shed more light on this case than in the nature of things was afforded at the time the petition for certiorari was considered, we have concluded that the writ should be dismissed as improvidently granted. See The Monrosa v. Carbon Black, Inc., 359 U.S. 180, 183-184, 79 S.Ct. 710, 3 L.Ed.2d 723 (1959).
6
It is so ordered.
7
Mr. Chief Justice BURGER, concurring.
8
I join the opinion of the Court. I note, however, several additional factors which came to light during plenary consideration of the case and which were not disclosed in the petition for certiorari. The three factors mentioned by the Court, ante, at 119, as tending to prove that the police officer acted in the course of his duties, are determinations made after the incident in question. There are, however, at least three contemporaneous factors, in addition to possession of the gun, which colored the officer's conduct as official: (1) The officer testified that he had formed an intention that he would arrest at least two of the men when he stood up to intervene in the altercation; (2) he intervened by using a can of mace issued to him by the police department; (3) he was acting pursuant to a police regulation which required his intervention in any disturbance of the peace, whether he was on or off duty.
9
These factors seem to me important because of the possible negative inference otherwise created that the only objective fact at the time of the incident evidencing state action was the presence of the state-required gun. While, of course, subsequent determinations by state officials, such as mentioned by the Court, are important evidence of state action, they could not transform something into state action that otherwise would be deemed to be private conduct. Thus, it is unclear what the result would have been had the only contemporaneous evidence of state action been the presence of the state-required gun. I wish to make it clear that the Court is not passing on that question today, because it is not presented by the record in this case.
1
Section 1983 provides:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
2
At no time during this litigation has the petitioner questioned the respondents' claim that, if the petitioner was acting "under color of law," there was a deprivation of the respondents' "rights, privileges, or immunities secured by the Constitution and laws" within the meaning of 42 U.S.C. § 1983.
| 89
|
429 U.S. 97
97 S.Ct. 285
50 L.Ed.2d 251
W. J. ESTELLE, Jr., Director, Texas Department of Corrections, et al., Petitioners,v.J. W. GAMBLE.
No. 75-929.
Argued Oct. 5, 1976.
Decided Nov. 30, 1976.
Rehearing Denied Jan. 17, 1977. See 429 U.S. 1066, 97 S.Ct. 798.
Syllabus
Respondent state inmate brought this civil rights action under 42 U.S.C. § 1983 against petitioners, the state corrections department medical director (Gray) and two correctional officials, claiming that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment for inadequate treatment of a back injury assertedly sustained while he was engaged in prison work. The District Court dismissed the complaint for failure to state a claim upon which relief could be granted. The Court of Appeals held that the alleged insufficiency of the medical treatment required reinstatement of the complaint. Held: Deliberate indifference by prison personnel to a prisoner's serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment. Here, however, respondent's claims against Gray do not suggest such indifference, the allegations revealing that Gray and other medical personnel saw respondent on 17 occasions during a 3-month span and treated his injury and other problems. The failure to perform an X-ray or to use additional diagnostic techniques does not constitute cruel and unusual punishment but is at most medical malpractice cognizable in the state courts. The question whether respondent has stated a constitutional claim against the other petitioners, the Director of the Department of Corrections and the warden of the prison, was not separately evaluated by the Court of Appeals and should be considered on remand. Pp. 101-108.
516 F.2d 937, reversed and remanded.
Bert W. Pluymen, Austin, Tex., for petitioners, pro hac vice, by special leave of Court.
Daniel K. Hedges, Houston, Tex., for respondent, pro hac vice, by special leave of Court.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Respondent J. W. Gamble, an inmate of the Texas Department of Corrections, was injured on November 9, 1973, while performing a prison work assignment. On February 11, 1974, he instituted this civil rights action under 42 U.S.C. § 1983,1 complaining of the treatment he received after the injury. Named as defendants were the petitioners, W. J. Estelle, Jr., Director of the Department of Corrections, H. H. Husbands, warden of the prison, and Dr. Ralph Gray, medical director of the Department and chief medical officer of the prison hospital. The District Court, sua sponte dismissed the complaint for failure to state a claim upon which relief could be granted.2 The Court of Appeals reversed and remanded with instructions to reinstate the complaint. 516 F.2d 937 (C.A.5 1975). We granted certiorari, 424 U.S. 907, 96 S.Ct. 1101, 47 L.Ed.2d 311 (1976).
2
* Because the complaint was dismissed for failure to state a claim, we must take as true its handwritten, pro se allegations. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964). According to the complaint, Gamble was injured on November 9, 1973, when a bale of cotton3 fell on him while he was unloading a truck. He continued to work but after four hours he became stiff and was granted a pass to the unit hospital. At the hospital a medical assistant, "Captain" Blunt, checked him for a hernia and sent him back to his cell. Within two hours the pain became so intense that Gamble returned to the hospital where he was given pain pills by an inmate nurse and then was examined by a doctor. The following day, Gamble saw a Dr. Astone who diagnosed the injury as a lower back strain, prescribed Zactirin (a pain reliever) and Robaxin (a muscle relaxant),4 and placed respondent on "cell-pass, cell-feed" status for two days, allowing him to remain in his cell at all times except for showers. On November 12, Gamble again saw Dr. Astone who continued the medication and cell-pass, cell-feed for another seven days. He also ordered that respondent be moved from an upper to a lower bunk for one week, but the prison authorities did not comply with that directive. The following week, Gamble returned to Dr. Astone. The doctor continued the muscle relaxant but prescribed a new pain reliever, Febridyne, and placed respondent on cell-pass for seven days, permitting him to remain in his cell except for meals and showers. On November 26, respondent again saw Dr. Astone, who put respondent back on the original pain reliever for five days and continued the cell-pass for another week.
3
On December 3, despite Gamble's statement that his back hurt as much as it had the first day, Dr. Astone took him off cell-pass, thereby certifying him to be capable of light work. At the same time, Dr. Astone prescribed Febridyne for seven days. Gamble then went to a Major Muddox and told him that he was in too much pain to work. Muddox had respondent moved to "administrative segregation."5 On December 5, Gamble was taken before the prison disciplinary committee, apparently because of his refusal to work. When the committee heard his complaint of back pain and high blood pressure, it directed that he be seen by another doctor.
4
On December 6, respondent saw petitioner Gray, who performed a urinalysis, blood test, and blood pressure measurement. Dr. Gray prescribed the drug Ser-Ap-Es for the high blood pressure and more Febridyne for the back pain. The following week respondent again saw Dr. Gray, who continued the Ser-Ap-Es for an additional 30 days. The prescription was not filled for four days, however, because the staff lost it. Respondent went to the unit hospital twice more in December; both times he was seen by Captain Blunt, who prescribed Tiognolos (described as a muscle relaxant). For all of December, respondent remained in administrative segregation.
5
In early January, Gamble was told on two occasions that he would be sent to the "farm" if he did not return to work. He refused, nonetheless, claiming to be in too much pain. On January 7, 1974, he requested to go on sick call for his back pain and migraine headaches. After an initial refusal, he saw Captain Blunt who prescribed sodium salicylate (a pain reliever) for seven days and Ser-Ap-Es for 30 days. Respondent returned to Captain Blunt on January 17 and January 25, and received renewals of the pain reliever prescription both times. Throughout the month, respondent was kept in administrative segregation.
6
On January 31, Gamble was brought before the prison disciplinary committee for his refusal to work in early January. He told the committee that he could not work because of his severe back pain and his high blood pressure. Captain Blunt testified that Gamble was in "first class" medical condition. The committee, with no further medical examination or testimony, placed respondent in solitary confinement.
7
Four days later, on February 4, at 8 a. m., respondent asked to see a doctor for chest pains and "blank outs." It was not until 7:30 that night that a medical assistant examined him and ordered him hospitalized. The following day a Dr. Heaton performed an electrocardiogram; one day later respondent was placed on Quinidine for treatment of irregular cardiac rhythm and moved to administrative segregation. On February 7, respondent again experienced pain in his chest, left arm, and back and asked to see a doctor. The guards refused. He asked again the next day. The guards again refused. Finally, on February 9, he was allowed to see Dr. Heaton, who ordered the Quinidine continued for three more days. On February 11, he swore out his complaint.
II
8
The gravamen of respondent's § 1983 complaint is that petitioners have subjected him to cruel and unusual punishment in violation of the Eighth Amendment, made applicable to the States by the Fourteenth.6 See Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). We therefore base our evaluation of respondent's complaint on those Amendments and our decisions interpreting them.
9
The history of the constitutional prohibition of "cruel and unusual punishments" has been recounted at length in prior opinions of the Court and need not be repeated here. See, e. g., Gregg v. Georgia, 428 U.S. 153, 169-173, 96 S.Ct. 2909, 2923, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ. (hereinafter joint opinion)); see also Granucci, Nor Cruel and Unusual Punishment Inflicted: The Original Meaning, 57 Calif.L.Rev. 839 (1969). It suffices to note that the primary concern of the drafters was to proscribe "torture(s)" and other "barbar(ous)" methods of punishment. Id., at 842. Accordingly, this Court first applied the Eighth Amendment by comparing challenged methods of execution to concededly inhuman techniques of punishment. See Wilkerson v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345 (1879) ("(I)t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment . . ."); In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933, 34 L.Ed. 519 (1890) ("Punishments are cruel when they involve torture or a lingering death . . .").
10
Our more recent cases, however, have held that the Amendment proscribes more than physically barbarous punishments. See, e. g., Gregg v. Georgia, supra, at 171, 96 S.Ct. at 2924 (joint opinion); Trop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 597, 598, 2 L.Ed.2d 630 (1958); Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910). The Amendment embodies "broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . . ," Jackson v. Bishop, 404 F.2d 571, 579 (C.A.8 1968), against which we must evaluate penal measures. Thus, we have held repugnant to the Eighth Amendment punishments which are incompatible with "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, supra, at 101, 78 S.Ct. at 598; see also Gregg v. Georgia, supra, at 172-173, 96 S.Ct. at 2925 (joint opinion); Weems v. United States, supra, 217 U.S. at 378, 30 S.Ct. at 553, or which "involve the unnecessary and wanton infliction of pain," Gregg v. Georgia, supra, at 173, 96 S.Ct. at 2925 (joint opinion); see also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947); Wilkerson v. Utah, supra, 99 U.S. at 136.7
11
These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical "torture or a lingering death," In re Kemmler, supra, the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. Cf. Gregg v. Georgia, supra, at 173, 96 S.Ct. at 2924-25 (joint opinion). The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation8 codifying the commonlaw view that "(i)t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself."9
12
We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain," Gregg v. Georgia, supra, at 182-183, 96 S.Ct. at 2925 (joint opinion), proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs10 or by prison guards in intentionally denying or delaying access to medical care11 or intentionally interfering with the treatment once prescribed.12 Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983.
13
This conclusion does not mean, however, that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment. An accident, although it may produce added anguish, is not on that basis alone to be characterized as wanton infliction of unnecessary pain. In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947), for example, the Court concluded that it was not unconstitutional to force a prisoner to undergo a second effort to electrocute him after a mechanical malfunction had thwarted the first attempt. Writing for the plurality, Mr. Justice Reed reasoned that the second execution would not violate the Eighth Amendment because the first attempt was an "unforeseeable accident." Id., at 464, 67 S.Ct. 376. Mr. Justice Frankfurter's concurrence, based solely on the Due Process Clause of the Fourteenth Amendment, concluded that since the first attempt had failed because of "an innocent misadventure," id., at 470, 67 S.Ct. at 379, the second would not be " 'repugnant to the conscience of mankind,' " id., at 471, 67 S.Ct. at 380, quoting Palko v. Connecticut, 302 U.S. 319, 323, 58 S.Ct. 149, 150, 82 L.Ed. 288 (1937).13
14
Similarly, in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute "an unnecessary and wanton infliction of pain" or to be "repugnant to the conscience of mankind." Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment.14
III
15
Against this backdrop, we now consider whether respondent's complaint states a cognizable § 1983 claim. The handwritten pro se document is to be liberally construed. As the Court unanimously held in Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), a pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears " 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Id., at 520-521, 92 S.Ct. at 596, quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
16
Even applying these liberal standards, however, Gamble's claims against Dr. Gray, both in his capacity as treating physician and as medical director of the Corrections Department, are not cognizable under § 1983. Gamble was seen by medical personnel on 17 occasions spanning a 3-month period: by Dr. Astone five times; by Dr. Gray twice; by Dr. Heaton three times; by an unidentified doctor and inmate nurse on the day of the injury; and by medical assistant Blunt six times. They treated his back injury, high blood pressure, and heart problems. Gamble has disclaimed any objection to the treatment provided for his high blood pressure and his heart problem; his complaint is "based solely on the lack of diagnosis and inadequate treatment of his back injury." Response to Pet. for Cert. 4; see also Brief for Respondent at 19. The doctors diagnosed his injury as a lower back strain and treated it with bed rest, muscle relaxants and pain relievers. Respondent contends that more should have been done by way of diagnosis and treatment, and suggests a number of options that were not pursued. Id., at 17, 19. The Court of Appeals agreed, stating: "Certainly an x-ray of (Gamble's) lower back might have been in order and other tests conducted that would have led to appropriate diagnosis and treatment for the daily pain and suffering he was experiencing." 516 F.2d, at 941. But the question whether an X-ray or additional diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court under the Texas Tort Claims Act.15 The Court of Appeals was in error in holding that the alleged insufficiency of the medical treatment required reversal and remand. That portion of the judgment of the District Court should have been affirmed.16
17
The Court of Appeals focused primarily on the alleged actions of the doctors, and did not separately consider whether the allegations against the Director of the Department of Corrections, Estelle, and the warden of the prison, Husbands, stated a cause of action. Although we reverse the judgment as to the medical director, we remand the case to the Court of Appeals to allow it an opportunity to consider, in conformity with this opinion, whether a cause of action has been stated against the other prison officials.
18
It is so ordered.
19
Mr. Justice BLACKMUN concurs in the judgment of the Court.
20
Mr. Justice STEVENS, dissenting.
21
Most of what is said in the Court's opinion is entirely consistent with the way the lower federal courts have been processing claims that the medical treatment of prison inmates is so inadequate as to constitute the cruel and unusual punishment prohibited by the Eighth Amendment. I have no serious disagreement with the way this area of the law has developed thus far, or with the probable impact of this opinion. Nevertheless, there are three reasons why I am unable to join it. First, insofar as the opinion orders the dismissal of the complaint against the chief medical officer of the prison, it is not faithful to the rule normally applied in construing the allegations in a pleading prepared by an uncounseled inmate. Second, it does not adequately explain why the Court granted certiorari in this case. Third, it describes the State's duty to provide adequate medical care to prisoners in ambiguous terms which incorrectly relate to the subjective motivation of persons accused of violating the Eighth Amendment rather than to the standard of care required by the Constitution.
22
* The complaint represents a crude attempt to challenge the system of administering medical care in the prison where Gamble is confined. Fairly construed, the complaint alleges that he received a serious disabling back injury in November 1973, that the responsible prison authorities were indifferent to his medical needs, and that as a result of that indifference he has been mistreated and his condition has worsened.
23
The indifference is allegedly manifested, not merely by the failure or refusal to diagnose and treat his injury properly, but also by the conduct of the prison staff. Gamble was placed in solitary confinement for prolonged periods as punishment for refusing to perform assigned work which he was physically unable to perform.1 The only medical evidence presented to the disciplinary committee was the statement of a medical assistant that he was in first-class condition, when in fact he was suffering not only from the back sprain but from high blood pressure. Prison guards refused to permit him to sleep in the bunk that a doctor had assigned. On at least one occasion a medical prescription was not filled for four days because it was lost by staff personnel. When he suffered chest pains and blackouts while in solitary, he was forced to wait 12 hours to see a doctor because clearance had to be obtained from the warden. His complaint also draws into question the character of the attention he received from the doctors and the inmate nurse in response to his 17 attempts to obtain proper diagnosis and treatment for his condition. However, apart from the medical director who saw him twice, he has not sued any of the individuals who saw him on these occasions. In short, he complains that the system as a whole is inadequate.
24
On the basis of Gamble's handwritten complaint it is impossible to assess the quality of the medical attention he received. As the Court points out, even if what he alleges is true, the doctors may be guilty of nothing more than negligence or malpractice. On the other hand, it is surely not inconceivable that an overworked, undermanned medical staff in a crowded prison2 is following the expedient course of routinely prescribing nothing more than pain killers when a thorough diagnosis would disclose an obvious need for remedial treatment.3 Three fine judges sitting on the United States Court of Appeals for the Fifth Circuit4 thought that enough had been alleged to require some inquiry into the actual facts. If this Court meant what it said in Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652, these judges were clearly right.5
25
The Haines test is not whether the facts alleged in the complaint would entitle the plaintiff to relief. Rather, it is whether the Court can say with assurance on the basis of the complaint that, beyond any doubt, no set of facts could be proved that would entitle the plaintiff to relief.6 The reasons for the Haines test are manifest. A pro se complaint provides an unsatisfactory foundation for deciding the merits of important questions because typically it is inartfully drawn, unclear, and equivocal, and because thorough pleadings, affidavits, and possibly an evidentiary hearing will usually bring out facts which simplify or make unnecessary the decision of questions presented by the naked complaint.7
26
Admittedly, it is tempting to eliminate the meritless complaint at the pleading stage. Unfortunately, this "is another instance of judicial haste which in the long run makes waste," Dioguardi v. Durning, 139 F.2d 774, 775 (C.A.2 1944) (Clark, J.), cited with approval in Haines v. Kerner, supra, 404 U.S., at 521, 92 S.Ct., at 596. In the instant case, if the District Court had resisted the temptation of premature dismissal, the case might long since have ended with the filing of medical records or affidavits demonstrating adequate treatment. Likewise, if the decision of the Fifth Circuit reinstating the complaint had been allowed to stand and the case had run its normal course, the litigation probably would have come to an end without the need for review by this Court. Even if the Fifth Circuit had wrongly decided the pleading issue, no great harm would have been done by requiring the State to produce its medical records and move for summary judgment. Instead, the case has been prolonged by two stages of appellate review, and is still not over: The case against two of the defendants may still proceed, and even the claims against the prison doctors have not been disposed of with finality.8
27
The principal beneficiaries of today's decision will not be federal judges, very little of whose time will be saved, but rather the "writ-writers" within the prison walls, whose semiprofessional services will be in greater demand. I have no doubt about the ability of such a semiprofessional to embellish this pleading with conclusory allegations which could be made in all good faith and which would foreclose a dismissal without any response from the State. It is unfortunate that today's decision will increase prisoners' dependence on those writ-writers. See Cruz v. Beto, 405 U.S. 319, 327 n. 7, 92 S.Ct. 1079, 1084, 31 L.Ed.2d 263 (Rehnquist, J., dissenting).
II
28
Like the District Court's decision to dismiss the complaint, this Court's decision to hear this case, in violation of its normal practice of denying interlocutory review, see R. Stern & E. Gressman, Supreme Court Practice 180 (4th ed. 1969), ill serves the interest of judicial economy.
29
Frankly, I was, and still am, puzzled by the Court's decision to grant certiorari.9 If the Court merely thought the Fifth Circuit misapplied Haines v. Kerner by reading the complaint too liberally, the grant of certiorari is inexplicable. On the other hand, if the Court thought that instead of a pleading question, the case presented an important constitutional question about the State's duty to provide medical care to prisoners, the crude allegations of this complaint do not provide the kind of factual basis10 the Court normally requires as a predicate for the adjudication of a novel and serious constitutional issue, see, e. g., Rescue Army v. Municipal Court, 331 U.S. 549, 568-575, 67 S.Ct. 1409, 1419-1423, 91 L.Ed. 1666; Ellis v. Dixon, 349 U.S. 458, 464, 75 S.Ct. 850, 854, 99 L.Ed. 1231; Wainwright v. City of New Orleans, 392 U.S. 598, 88 S.Ct. 2243, 20 L.Ed.2d 1322 (Harlan, J., concurring).11 Moreover, as the Court notes, all the Courts of Appeals to consider the question have reached substantially the same conclusion that the Court adopts. Ante, at 292 n. 14. Since the Court seldom takes a case merely to reaffirm settled law, I fail to understand why it has chosen to make this case an exception to its normal practice.
III
30
By its reference to the accidental character of the first unsuccessful attempt to electrocute the prisoner in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422, see ante, at 105, and by its repeated references to "deliberate indifference" and the "intentional" denial of adequate medical care, I believe the Court improperly attaches significance to the subjective motivation of the defendant as a criterion for determining whether cruel and unusual punishment has been inflicted.12 Subjective motivation may well determine what, if any, remedy is appropriate against a particular defendant. However, whether the constitutional standard has been violated should turn on the character of the punishment rather than the motivation of the individual who inflicted it.13 Whether the conditions in Andersonville were the product of design, negligence, or mere poverty, they were cruel and inhuman.
31
In sum, I remain convinced that the petition for certiorari should have been denied. It having been granted, I would affirm the judgment of the Court of Appeals.
1
Title 42 U.S.C. § 1983 provides:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
2
It appears that the petitioner-defendants were not even aware of the suit until it reached the Court of Appeals. Tr. of Oral Arg. 7, 13-15. This probably resulted because the District Court dismissed the complaint simultaneously with granting leave to file it in forma pauperis.
3
His complaint states that the bale weighed "6.00 pound." The Court of Appeals interpreted this to mean 600 pounds. 516 F.2d 937, 938 (CA5 1975).
4
The names and descriptions of the drugs administered to respondent are taken from his complaint, App. A-5 A-11, and his brief, at 19-20.
5
There are a number of terms in the complaint whose meaning is unclear and, with no answer from the State, must remain so. For example, "administrative segregation" is never defined. The Court of Appeals deemed it the equivalent of solitary confinement. 516 F.2d, at 939. We note, however, that Gamble stated he was in "administrative segregation" when he was in the "32A-7 five building" and "32A20 five building," but when he was in "solitary confinement," he was in "3102 five building."
6
The Eighth Amendment provides:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
At oral argument, counsel for respondent agreed that his only claim was based on the Eighth Amendment. Tr. of Oral Arg. 42-43.
7
The Amendment also proscribes punishments grossly disproportionate to the severity of the crime, Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. at 2925 (1976) (joint opinion); Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549 (1910), and it imposes substantive limits on what can be made criminal and punished, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Neither of these principles is involved here.
8
See, e. g., Ala.Code Tit. 45, § 125 (1958); Alaska Stat. § 33.30.050 (1975); Ariz.Rev.Stat.Ann. § 31-201.01 (Supp.1975); Conn.Gen.Stat.Ann. § 18-7 (1975); Ga.Code Ann. § 77-309(e) (1973); Idaho Code § 20-209 (Supp.1976); Ill.Ann.Stat. c. 38, § 103-2 (1970); Ind.Ann.Stat. § 11-1-1.1-30.5 (1973); Kan.Stat.Ann. § 75-4249 (Supp.1975); Md.Ann.Code Art. 27 § 698 (1976); Mass.Ann.Laws, c. 127, § 90A (1974); Mich.Stat.Ann. § 14.84 (1969); Miss.Code Ann. § 47-1-57 (1972); Mo.Ann.Stat. § 221.120 (1962); Neb.Rev.Stat. § 83-181 (1971); N.H.Rev.Stat.Ann. § 619.9 (1974); N.M.Stat.Ann. § 42-2-4 (1972); Tenn.Code Ann. §§ 41-318, 41-1115, 41-1226 (1975); Utah Code Ann. §§ 64-9-13, 64-9-19, 64-9-20, 64-9-53 (1968); Va.Code Ann. §§ 32-81, 32-82 (1973); W.Va.Code Ann. § 25-1-16 (Supp.1976); Wyo.Stat.Ann. § 18-299 (1959).
Many States have also adopted regulations which specify, in varying degrees of detail, the standards of medical care to be provided to prisoners. See Comment, The Rights of Prisoners to Medical Care and the Implications for Drug-Dependent Prisoners and Pretrial Detainees, 42 U.Chi.L.Rev. 705, 708-709 (1975).
Model correctional legislation and proposed minimum standards are all in accord. See American Law Institute, Model Penal Code §§ 303.4, 304.5 (1962); National Advisory Commission on Criminal Justice Standards and Goals, Standards on Rights of Offenders, Standard 2.6 (1973); National Council on Crime and Delinquency, Model Act for the Protection of Rights of Prisoners, § 1(b) (1972); National Sheriffs' Association, Standards for Inmates' Legal Rights, Right No. 3 (1974); Fourth United Nations Congress on Prevention of Crime and Treatment of Offenders, Standard Minimum Rules for the Treatment of Prisoners, Rules 22-26 (1955). The foregoing may all be found in U.S. Dept. of Justice Law Enforcement Assistance Administration Compendium of Model Correctional Legislation and Standards (2d ed. 1975).
9
Spicer v. Williamson, 191 N.C. 487, 490, 132 S.E. 291, 293 (1926).
10
See, e. g., Williams v. Vincent, 508 F.2d 541 (C.A.2 1974) (doctor's choosing the "easier and less efficacious treatment" of throwing away the prisoner's ear and stitching the stump may be attributable to "deliberate indifference . . . rather than an exercise of professional judgment"); Thomas v. Pate, 493 F.2d 151, 158 (C.A.7), cert. denied sub nom. Thomas v. Cannon, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974) (injection of penicillin with knowledge that prisoner was allergic, and refusal of doctor to treat allergic reaction); Jones v. Lockhart, 484 F.2d 1192 (C.A.8 1973) (refusal of paramedic to provide treatment); Martinez v. Mancusi, 443 F.2d 921 (C.A.2 1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1202, 28 L.Ed.2d 335 (1971) (prison physician refuses to administer the prescribed pain killer and renders leg surgery unsuccessful by requiring prisoner to stand despite contrary instructions of surgeon).
11
See, e. g., Westlake v. Lucas, 537 F.2d 857 (C.A.6 1976); Thomas v. Pate, supra, 493 F.2d 151, at 158-159; Fitzke v. Shappell, 468 F.2d 1072 (C.A.6 1972); Hutchens v. Alabama, 466 F.2d 507 (C.A.5 1972); Riley v. Rhay, 407 F.2d 496 (C.A.9 1969); Edwards v. Duncan, 355 F.2d 993 (C.A.4 1966); Hughes v. Noble, 295 F.2d 495 (C.A.5 1961).
12
See, e. g., Wilbron v. Hutto, 509 F.2d 621, 622 (C.A.8 1975); Campbell v. Beto, 460 F.2d 765 (C.A.5 1972); Martinez v. Mancusi, supra ; Tolbert v. Eyman, 434 F.2d 625 (C.A.9 1970); Edwards v. Duncan, supra.
13
He noted, however, that "a series of abortive attempts" or "a single, cruelly willful attempt" would present a different case. 329 U.S., at 471, 67 S.Ct., at 380.
14
The Courts of Appeals are in essential agreement with this standard. All agree that mere allegations of malpractice do not state a claim, and, while their terminology regarding what is sufficient varies, their results are not inconsistent with the standard of deliberate indifference. See Page v. Sharpe, 487 F.2d 567, 569 (C.A.1 1973); Williams v. Vincent, supra, 508 F.2d 541, at 544 (uses the phrase "deliberate indifference"); Gittlemacker v. Prasse, 428 F.2d 1, 6 (C.A.3 1970); Russell v. Sheffer, 528 F.2d 318 (C.A.4 1975); Newman v. Alabama, 503 F.2d 1320, 1330 n. 14 (C.A.5 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1975) ("callous indifference"); Westlake v. Lucas, supra, 537 F.2d, at 860 ("deliberate indifference"); Thomas v. Pate, supra, 493 F.2d, at 158; Wilbron v. Hutto, supra, 509 F.2d, at 622 ("deliberate indifference"); Tolbert v. Eyman, supra, 434 F.2d, at 626; Dewell v. Lawson, 489 F.2d 877, 881-882 (C.A.10 1974).
15
Tex.Rev.Civ.Stat., Art. 6252-19, § 3 (Supp.1976). Petitioners assured the Court at argument that this statute can be used by prisoners to assert malpractice claims. Tr. of Oral Arg.
16
Contrary to Mr. Justice STEVENS' assertion in dissent, this case signals no retreat from Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). In contrast to the general allegations in Haines, Gamble's complaint provides a detailed factual accounting of the treatment he received. By his exhaustive description he renders speculation unnecessary. It is apparent from his complaint that he received extensive medical care and that the doctors were not indifferent to his needs.
1
In his complaint, Gamble alleged that he had been placed in administrative segregation and remained there through December and January. At the end of January he was placed in solitary confinement. In an affidavit filed in the Court of Appeals the following December, see n. 8, infra, Gamble alleged that with the exception of one day in which he was taken out of solitary to be brought before the disciplinary committee he had remained in solitary up to the date of the affidavit.
2
According to a state legislative report quoted by the Court of Appeals, the Texas Department of Corrections has had at various times one to three doctors to care for 17,000 inmates with occasional part-time help. 516 F.2d 937, 940-941, n. 1 (1975).
3
This poorly drafted complaint attempts to describe conditions which resemble those reported in other prison systems. For instance, a study of the Pennsylvania prison system reported:
"When ill, the prisoner's point of contact with a prison's health care program is the sick-call line. Access may be barred by a guard, who refuses to give the convict a hospital pass out of whimsy or prejudice, or in light of a history of undiagnosed complaints. At sick call the convict commonly first sees a civilian paraprofessional or a nurse, who may treat the case with a placebo without actual examination, history-taking or recorded diagnosis. Even seeing the doctor at some prisons produces no more than aspirin for symptoms, such as dizziness and fainting, which have persisted for years." Health Law Project, University of Pennsylvania, Health Care and Conditions in Pennsylvania's State Prisons, in American Bar Association Commission on Correctional Facilities and Services, Medical and Health Care in Jails, Prisons, and Other Correctional Facilities: A Compilation of Standards and Materials, 71, 81-82 (Aug. 1974).
A legislative report on California prisons found:
"By far, the area with the greatest problem at the hospital (at one major prison), and perhaps at all the hospitals, was that of the abusive doctor-patient relationship. Although the indifference of M.T.A.s (medical technical assistants) toward medical complaints by inmates is not unique at Folsom, and has been reported continuously elsewhere, the calloused and frequently hostile attitude exhibited by the doctors is uniquely reprehensible. . . .
"Typical complaints against (one doctor) were that he would . . . not adequately diagnose or treat a patient who was a disciplinary problem at the prison . . . ." Assembly Select Committee on Prison Reform and Rehabilitation, An Examination of California's Prison Hospitals, 60-61 (1972).
These statements by responsible observers demonstrate that it is far from fanciful to read a prisoner's complaint as alleging that only pro forma treatment was provided.
4
The panel included Mr. Justice Clark, a retired member of this Court, sitting by designation, and Circuit Judges Goldberg and Ainsworth.
5
In Haines a unanimous Supreme Court admonished the federal judiciary to be especially solicitous of the problems of the uneducated inmate seeking to litigate on his own behalf. The Court said:
"Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). See Dioguardi v. Durning, 139 F.2d 774 (C.A.2 1944)." 404 U.S., at 520-521, 92 S.Ct., at 595-596.
Under that test the complaint should not have been dismissed without, at the very minimum, requiring some response from the defendants. It appears from the record that although the complaint was filed in February, instead of causing it to be served on the defendants as required by Fed.Rule Civ.Proc. 4, the Clerk of the District Court referred it to a magistrate who decided in June that the case should be dismissed before any of the normal procedures were even commenced. At least one Circuit has held that dismissal without service on the defendants is improper, Nichols v. Schubert, 499 F.2d 946 (C.A.7 1974). The Court's disposition of this case should not be taken as an endorsement of this practice since the question was not raised by the parties.
6
This is the test actually applied in Haines, for although the Court ordered the complaint reinstated, it expressly "intimate(d) no view whatever on the merits of petitioner's allegations," 404 U.S., at 521, 92 S.Ct., at 596. It is significant that the Court took this approach despite being pressed by the State to decide the merits. As in this case, the State argued forcefully that the facts alleged in the complaint did not amount to a constitutional violation. (Only in one footnote in its 51-page brief did the State discuss the pleading question, Brief for Respondents 22-23, n. 20, in No. 70-5025, O.T. 1971.) Yet, this Court devoted not a single word of its opinion to answering the argument that no constitutional violation was alleged.
7
Thus, Haines teaches that the decision on the merits of the complaint should normally be postponed until the facts have been ascertained. The same approach was taken in Polk Co. v. Glover, 305 U.S. 5, 59 S.Ct. 15, 83 L.Ed. 6, in which the Court reversed the dismissal of a complaint, without intimating any view of the constitutional issues, on "(t)he salutary principle that the essential facts should be determined before passing upon grave constitutional questions . . . ." Id., at 10, 59 S.Ct. at 17. See also Borden's Co. v. Baldwin, 293 U.S. 194, 213, 55 S.Ct. 187, 193, 79 L.Ed. 281 (Cardozo and Stone, JJ., concurring in result). This approach potentially avoids the necessity of ever deciding the constitutional issue since the facts as proved may remove any constitutional question. Alternatively, a more concrete record will be available on which to decide the constitutional issues. See generally Rescue Army v. Municipal Court, 331 U.S. 549, 574-575, 67 S.Ct. 1409, 1422, 1423, 19 L.Ed. 1666. Even when constitutional principles are not involved, it is important that "the conceptual legal theories be explored and assayed in the light of actual facts, not as a pleader's supposition," so that courts may avoid "elucidating legal responsibilities as to facts which may never be." Shull v. Pilot Life Ins. Co., 313 F.2d 445, 447 (C.A.5 1963).
8
In an affidavit filed in the Court of Appeals, Gamble states that he has been transferred to another prison, placed in solitary confinement, and denied any medical care at all. These conditions allegedly were continuing on December 3, 1974, the date of the affidavit. The Court of Appeals apparently considered these allegations, as shown by a reference to "the fact that (Gamble) has spent months in solitary confinement without medical care and stands a good chance of remaining that way without intervention," 516 F.2d, at 941. Presumably the Court's remand does not bar Gamble from pursuing these charges, if necessary through filing a new complaint or formal amendment of the present complaint. The original complaint also alleged that prison officials failed to comply with a doctor's order to move Gamble to a lower bunk, that they put him in solitary confinement when he claimed to be physically unable to work, and that they refused to allow him to see a doctor for two days while he was in solitary. Gamble's medical condition is relevant to all these allegations. It is therefore probable that the medical records will be produced and that testimony will be elicited about Gamble's medical care. If the evidence should show that he in fact sustained a serious injury and received only pro forma care, he would surely be allowed to amend his pleading to reassert a claim against one or more of the prison doctors.
9
"The only remarkable thing about this case is its presence in this Court. For the case involves no more than the application of well-settled principles to a familiar situation, and has little significance except for the respondent. Why certiorari was granted is a mystery to me particularly at a time when the Court is thought by many to be burdened by too heavy a caseload." Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 189, 93 S.Ct. 1455, 1460, 36 L.Ed.2d 142 (Stewart, J., dissenting).
10
As this Court notes, ante, at 100 n. 5, even the meaning of some of the terms used in the complaint is unclear.
11
If this was the reason for granting certiorari, the writ should have been dismissed as improvidently granted when it became clear at oral argument that the parties agreed on the constitutional standard and disagreed only as to its application to the allegations of this particular complaint. See Tr. of Oral Arg. 38, 48.
12
As the four dissenting Justices in Resweber pointed out:
"The intent of the executioner cannot lessen the torture or excuse the result. It was the statutory duty of the state officials to make sure that there was no failure." 329 U.S., at 477, 67 S.Ct., at 382 (Burton, J., joined by Douglas, Murphy, and Rutledge, JJ.).
13
The Court indicates the Eighth Amendment is violated "by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Ante, at 104-105. If this is meant to indicate that intent is a necessary part of an Eighth Amendment violation, I disagree. If a State elects to impose imprisonment as a punishment for crime, I believe it has an obligation to provide the persons in its custody with a health care system which meets minimal standards of adequacy. As a part of that basic obligation, the State and its agents have an affirmative duty to provide reasonable access to medical care, to provide competent, diligent medical personnel, and to ensure that prescribed care is in fact delivered. For denial of medical care is surely not part of the punishment which civilized nations may impose for crime.
Of course, not every instance of improper health care violates the Eighth Amendment. Like the rest of us, prisoners must take the risk that a competent, diligent physician will make an error. Such an error may give rise to a tort claim but not necessarily to a constitutional claim. But when the State adds to this risk, as by providing a physician who does not meet minimum standards of competence or diligence or who cannot give adequate care because of an excessive caseload or inadequate facilities, then the prisoner may suffer from a breach of the State's constitutional duty.
| 01
|
429 U.S. 121
97 S.Ct. 400
50 L.Ed.2d 336
UNITED STATESv.John David KOPP.
No. 75-1536.
Dec. 6, 1976.
PER CURIAM.
1
The operative facts herein are substantially identical to those in United States v. Morrison, 429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1, and United States v. Rose, 429 U.S. 5, 97 S.Ct. 26, 50 L.Ed.2d 5. Respondent's car was stopped by Border Patrol agents; a search disclosed marihuana. Respondent lost a motion to suppress and was found guilty after a bench trial. Following this trial, but before sentencing, the District Court, relying upon our decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), dismissed the indictment. The Court of Appeals for the Tenth Circuit, as it did in Morrison and Rose, found the Government's appeal barred by double jeopardy.
2
In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), we held that double jeopardy would not bar a Government appeal if success on that appeal would result in the reinstatement of a verdict of guilty. The fact that the dismissal of the indictment here occurred after a general finding of guilt rendered by the court in a bench trial, rather than after a return of a verdict of guilty by a jury, is immaterial. Morrison, supra. Double jeopardy therefore does not bar an appeal by the Government.
3
We grant the petition for certiorari, vacate the judgment of the Court of Appeals, and remand to that court for proceedings consistent herewith.
| 01
|
429 U.S. 122
97 S.Ct. 399
50 L.Ed.2d 339
Curfew DAVISv.State of GEORGIA.
No. 76-5403.
Dec. 6, 1976.
PER CURIAM.
1
The petitioner in this case was convicted of murder and sentenced to death after trial by a jury selected in violation of the standards enunciated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and applied in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), and Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970). The Witherspoon case held that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U.S., at 522, 88 S.Ct., at 1777.
2
The Supreme Court of Georgia found that one prospective juror had been excluded in violation of the Witherspoon standard. The court nevertheless affirmed the conviction and death sentence, reasoning that the erroneous exclusion of one death-scrupled juror did not deny the petitioner a jury representing a cross section of the community since other jurors sharing that attitude were not excused for cause: "The rationale of Witherspoon and its progeny is not violated where merely one of a qualified class or group is excluded where it is shown, as here, that others of such group were qualified to serve. This record is completely void of any evidence of a systematic and intentional exclusion of a qualified group of jurors so as to deny the appellant a jury of veniremen representing a cross section of the community." 236 Ga. 804, 809-810, 225 S.E.2d 241, 244-245.
3
(1, 2) That, however, is not the test established in Witherspoon, and it is not the test that this Court has applied in subsequent cases where a death penalty was imposed after the improper exclusion of one member of the venire. See Wigglesworth v. Ohio, 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971), rev'g 18 Ohio St.2d 171, 248 N.E.2d 607 (1969); Harris v. Texas, 403 U.S. 947, 91 S.Ct. 2291, 29 L.Ed.2d 859 (1971), rev'g 457 S.W.2d 903 (Ct.Crim.App.Tex.1970); Adams v. Washington, 403 U.S. 947, 91 S.Ct. 2273, 29 L.Ed.2d 855 (1971), rev'g 76 Wash.2d 650, 458 P.2d 558 (1969). Unless a venireman is "irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings," 391 U.S. at 522 n. 21, 88 S.Ct. at 1777, he cannot be excluded; if a venireman is improperly excluded even though not so committed, any subsequently imposed death penalty cannot stand.
4
Accordingly, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
5
It is so ordered.
6
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting.
7
As is clear from the most cursory reading, Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), does not inexorably lead to the result this Court now reaches. Indeed, much of the language in that opinion would support the reasoning, and the result, reached by the Supreme Court of Georgia. The extension of Witherspoon to cover the case where a sole venireman is excluded in violation of its test deserves plenary consideration, not a per se rule that precludes application of even the harmless-error test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). There is no indication that the Supreme Court of Georgia was wrong when it observed that the "record is completely void of any evidence of a systematic and intentional exclusion of a qualified group of jurors so as to deny the appellant a jury of veniremen representing a cross section of the community," 236 Ga. 804, 809-810, 225 S.E.2d 241, 245.
8
It is, moreover, unclear whether the State was entitled to another peremptory challenge,* and surely Witherspoon does not decide whether the presence of unexercised peremptory challenges might render harmless the improper exclusion of a limited number of veniremen. Finally, the defect in this case is not that a juror was improperly excluded because she was not irrevocably opposed to the death penalty; rather, the defect is a failure to question sufficiently to determine whether or not she was irrevocably opposed. It is not inconceivable that a hearing with the excluded juror could be conducted now to finish the aborted questioning and determine whether she would have, in fact, been excludable for cause.
9
The effects of the arguably improper exclusion, in short, are too murky to warrant summary reversal of the sentence imposed. Since I do not believe this case is controlled by our past decisions, I would grant certiorari and set the case for argument.
*
Normally, the defense, in a capital case, is entitled to 20 peremptory challenges, and the State is entitled to one-half as many as the defense. Ga.Code Ann. § 59-805 (1965). In this case, the transcript reveals that the defense utilized 21 peremptory challenges; the State, 10.
| 01
|
429 U.S. 163
97 S.Ct. 544
50 L.Ed.2d 371
State of IDAHO ex rel. Cecil D. ANDRUS, Governor, et al., plaintiff,v.States of OREGON and Washington
No. 67
Supreme Court of the United States
December 7, 1976
On motion for leave to file Bill of Complaint.
Dec. 7, 1976.
PER CURIAM.
1
The Court has considered the written submissions of the parties and heard oral argument by the Attorneys General of the States with respect to the motion of the State of Idaho for leave to file a bill of complaint. It having been concluded that the Court has original and exclusive jurisdiction of this case to the extent that the complaint prays that the Court declare that the State of Idaho is entitled to an equitable portion of the upriver anadromous fishery of the Columbia River Basin and that the Court determine Idaho's equitable portion based on the evidence and award costs and appropriate incidental relief, the motion for leave to file is hereby granted to that extent. The motion is in all other respects denied. This order is not a judgment that the bill of complaint, to the extent that permission to file is granted, states a claim upon which relief may be granted. This order also leaves open the question of the indispensability of the United States as a party for decision after evidence, in the event the United States does not enter its appearance in the case. The States of Oregon and Washington are directed to file answers to the bill of complaint or to otherwise plead within 60 days and process is ordered to issue accordingly.
2
It is so ordered.
| 1011
|
50 L.Ed.2d 373
97 S.Ct. 543
429 U.S. 165
Billy D. COOK et al., petitioners,v.Roger W. HUDSON et al
No. 75-503
Supreme Court of the United States
December 7, 1976
On writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
Dec. 7, 1976.
PER CURIAM.
1
Certiorari was granted to consider the question presented: whether, consistently with the First and Fourteenth Amendments, a Mississippi public school board may terminate the employment of teachers sending their children not to public schools, but to a private racially segregated school. However, since the grant of certiorari, Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), held that 42 U.S.C. § 1981 prohibits private, commercially operated, nonsectarian schools from denying admission to prospective students because they are Negroes. Moreover, a Mississippi statute, Miss.Code Ann. § 37-9-59 (Supp.1976), enacted in 1974 after the school board action here complained of, prohibits school boards "from denying employment or reemployment to any person . . . for the single reason that any eligible child of such person does not attend the school system in which such (person) is employed." Though § 37-9-59 was cited in the record at the time of granting the writ, examination of the merits on oral argument in light of Runyon v. McCrary and § 37-9-59 satisfies us that the grant was improvident. Accordingly, the writ of certiorari is dismissed as improvidently granted. Cf. Rice v. Sioux City Cemetery, 349 U.S. 70, 75 S.Ct. 614, 99 L.Ed. 897 (1955).
2
Mr. Chief Justice BURGER, concurring in the result.
3
I join in the Court's disposition of this case. In doing so, I emphasize that our decision to dismiss the writ of certiorari as improvidently granted intimates no view on the question of when, if ever, public school teachers or any comparable public employees may be required, as a condition of their employment, to enroll their children in any particular school or refrain from sending them to a school which they, as parents, in their sole discretion, consider desirable. Few familial decisions are as immune from governmental interference as parents' choice of a school for their children, so long as the school chosen otherwise meets the educational standards imposed by the State. See Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).
| 89
|
429 U.S. 125
97 S.Ct. 401
50 L.Ed.2d 343
GENERAL ELECTRIC COMPANY, Petitioner,v.Martha V. GILBERT et al. Martha V. GILBERT et al., Petitioners, v. GENERAL ELECTRIC COMPANY.
Nos. 74-1589 and 74-1590.
Argued Jan. 19-20, 1976.
Reargued Oct. 13, 1976.
Decided Dec. 7, 1976.
Rehearing Denied Jan. 25, 1977. See 429 U.S. 1079, 97 S.Ct. 825.
Syllabus
This class action was brought by respondents challenging as violative of Title VII of the Civil Rights Act of 1964 the disability plan of petitioner. Under the plan petitioner provides nonoccupational sickness and accident benefits to all its employees, but disabilities arising from pregnancy are excluded. The District Court following trial held that the exclusion constituted sex discrimination in violation of Title VII. The Court of Appeals affirmed, finding that the intervening decision in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256, wherein this Court held that disparity in treatment between pregnancy-related and other disabilities was not sex discrimination under the Equal Protection Clause of the Fourteenth Amendment, was not applicable in a Title VII context. Under § 703(a)(1) of that Title it is an unlawful employment practice for an employer to discriminate against any individual with respect to compensation because of that individual's sex. Held: Petitioners' disability benefits plan does not violate Title VII because of its failure to cover pregnancy-related disabilities. Pp. 133-146.
(a) The plan, which is strikingly similar to the one in Geduldig, "does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition pregnancy from the list of compensable disabilities. . . . 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." 417 U.S., at 496-497, n. 20, 94 S.Ct. at 2491-2492. Since it is a finding of sex-based discrimination that in a case like this must trigger the finding of an unlawful employment practice under § 703(a)(1), Geduldig is precisely in point in its holding that an exclusion of pregnancy from a disability benefits plan like petitioner's providing general coverage is not a gender-based discrimination at all. Pp. 133-136.
(b) There was no more showing here than there was in Geduldig that the exclusion of pregnancy disability benefits from petitioner's plan was a pretext for discriminating against women, since pregnancy, though confined to women, is in other ways significantly different from the typical covered disease or disability. P. 136.
(c) Gender-based discrimination does not result simply because an employer's disability benefits plan is less than all inclusive. Petitioner's plan is no more than an insurance package covering some risks but excluding others and there has been no showing that the selection of included risks creates a gender-based discriminatory effect. Pp. 136-140.
(d) A 1972 guideline of the Equal Employment Opportunity Commission (EEOC) relied upon by respondents, not only conflicts with earlier EEOC pronouncements but is at odds with the consistent interpretation of the Wage and Hour Administrator with respect to § 703(h) of Title VII, as amended by the Equal Pay Act, and the legislative history of Title VII, both of which support the "plain meaning" of the language used by Congress when it enacted § 703(a) (1). Pp. 140-145.
4 Cir., 519 F.2d 661, reversed.
Theophil C. Kammholz, Washington, D. C., for General Elec. Co.
Ruth Weyand, Washington, D. C., for Gilbert and others.
J. Stanley Pottinger, Washington, D. C., for the United States, as amicus curiae.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioner, General Electric Co.,1 provides for all of its employees a disability plan which pays weekly nonoccupational sickness and accident benefits. Excluded from the plan's coverage, however, are disabilities arising from pregnancy. Respondents, on behalf of a class of women employees, brought this action seeking, inter alia,2 a declaration that this exclusion constitutes sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. The District Court for the Eastern District of Virginia, following a trial on the merits, held that the exclusion of such pregnancy-related disability benefits from General Electric's employee disability plan violated Title VII, 375 F.Supp. 367. The Court of Appeals affirmed, 4 Cir., 519 F.2d 661, and we granted certiorari, 423 U.S. 822, 96 S.Ct. 36, 46 L.Ed.2d 39. We now reverse.
2
* As part of its total compensation package, General Electric provides nonoccupational sickness and accident benefits to all employees under its Weekly Sickness and Accident Insurance Plan (Plan) in an amount equal to 60% of an employee's normal straight-time weekly earnings. These payments are paid to employees who become totally disabled as a result of a nonoccupational sickness or accident. Benefit payments normally start with the eighth day of an employee's total disability (although if an employee is earlier confined to a hospital as a bed patient, benefit payments will start immediately), and continue up to a maximum of 26 weeks for any one continuous period of disability or successive periods of disability due to the same or related causes.3
3
The individual named respondents are present or former hourly paid production employees at General Electric's plant in Salem, Va. Each of these employees was pregnant during 1971 or 1972, while employed by General Electric, and each presented a claim to the company for disability benefits under the Plan to cover the period while absent from work as a result of the pregnancy. These claims were routinely denied on the ground that the Plan did not provide disability-benefit payments for any absence due to pregnancy.4 Each of the respondents thereafter filed charges with the Equal Employment Opportunity Commission (EEOC) alleging that the refusal of General Electric to pay disability benefits under the Plan for time lost due to pregnancy and childbirth discriminated against her because of sex. Upon waiting the requisite number of days, the instant action was commenced in the District Court.5 The complaint asserted a violation of Title VII. Damages were sought as well as an injunction directing General Electric to include pregnancy disabilities within the Plan on the same terms and conditions as other nonoccupational disabilities.
4
Following trial, the District Court made findings of fact and conclusions of law, and entered an order in which it determined that General Electric, by excluding pregnancy disabilities from the coverage of the Plan, had engaged in sex discrimination in violation of § 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). The District Court found that normal pregnancy, while not necessarily either a "disease" or an "accident," was disabling for a period of six to eight weeks;6 that approximately "(t)en per cent of pregnancies are terminated by miscarriage, which is disabling";7 and that approximately 10% of pregnancies are complicated by diseases which may lead to additional disability.8 The District Court noted the evidence introduced during the trial, a good deal of it stipulated, concerning the relative cost to General Electric of providing benefits under the Plan to male and female employees,9 all of which indicated that, with pregnancy-related disabilities excluded, the cost of the Plan to General Electric per female employee was at least as high as, if not substantially higher than, the cost per male employee.10
5
The District Court found that the inclusion of pregnancy-related disabilities within the scope of the Plan would "increase G. E.'s (disability benefits plan) costs by an amount which, though large, is at this time undeterminable." 375 F.Supp., at 378. The District Court declined to find that the present actuarial value of the coverage was equal as between men and women,11 but went on to decide that even had it found economic equivalence, such a finding would not in any case have justified the exclusion of pregnancy-related disabilities from an otherwise comprehensive nonoccupational sickness and accident disability plan. Regardless of whether the cost of including such benefits might make the Plan more costly for women than for men, the District Court determined that "(i)f Title VII intends to sexually equalize employment opportunity, there must be this one exception to the cost differential defense." Id., at 383.
6
The ultimate conclusion of the District Court was that petitioner had discriminated on the basis of sex in the operation of its disability program in violation of Title VII, id., at 385-386. An order was entered enjoining petitioner from continuing to exclude pregnancy-related disabilities from the coverage of the Plan, and providing for the future award of monetary relief to individual members of the class affected. Petitioner appealed to the Court of Appeals for the Fourth Circuit, and that court by a divided vote affirmed the judgment of the District Court.
7
Between the date on which the District Court's judgment was rendered and the time this case was decided by the Court of Appeals, we decided Geduldig v. Aiello 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), where we rejected a claim that a very similar disability program established under California law violated the Equal Protection Clause of the Fourteenth Amendment because that plan's exclusion of pregnancy disabilities represented sex discrimination. The majority of the Court of Appeals felt that Geduldig was not controlling because it arose under the Equal Protection Clause of the Fourteenth Amendment, and not under Title VII, 519 F.2d, at 666-667. The dissenting opinion disagreed with the majority as to the impact of Geduldig, 519 F.2d, at 668-669. We granted certiorari to consider this important issue in the construction of Title VII.12
II
8
Section 703(a)(1) provides in relevant part that it shall be an unlawful employment practice for an employer
9
"to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin," 42 U.S.C. § 2000e-2(a)(1).
10
While there is no necessary inference that Congress, in choosing this language, intended to incorporate into Title VII the concepts of discrimination which have evolved from court decisions construing the Equal Protection Clause of the Fourteenth Amendment, the similarities between the congressional language and some of those decisions surely indicate that the latter are a useful starting point in interpreting the former. Particularly in the case of defining the term "discrimination," which Congress has nowhere in Title VII defined, those cases afford an existing body of law analyzing and discussing that term in a legal context not wholly dissimilar to the concerns which Congress manifested in enacting Title VII. We think, therefore, that our decision in Geduldig v. Aiello, supra, dealing with a strikingly similar disability plan, is quite relevant in determining whether or not the pregnancy exclusion did discriminate on the basis of sex. In Geduldig, the disability insurance system was funded entirely from contributions deducted from the wages of participating employees, at a rate of 1% of the employee's salary up to an annual maximum of $85. In other relevant respects, the operation of the program was similar to General Electric's disability benefits plan, see 417 U.S., at 487-489, 94 S.Ct., at 2487-2488.
11
We rejected appellee's equal protection challenge to this statutory scheme. We first noted:
12
"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 to insure." Id., at 494, 94 S.Ct., at 2491.
13
This point was emphasized again, when later in the opinion we noted:
14
"(T)his 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.
15
"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." Id., at 496-497, n. 20, 94 S.Ct., at 2492.
16
The quoted language from Geduldig leaves no doubt that our reason for rejecting appellee's equal protection claim in that case was that the exclusion of pregnancy from coverage under California's disability-benefits plan was not in itself discrimination based on sex.
17
We recognized in Geduldig, of course, that the fact that there was no sex-based discrimination as such was not the end of the analysis, should it be shown "that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other," ibid. But we noted that no semblance of such a showing had been made:
18
"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. 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." Id., at 496-497, 94 S.Ct., at 2492.
19
Since gender-based discrimination had not been shown to exist either by the terms of the plan or by its effect, there was no need to reach the question of what sort of standard would govern our review had there been such a showing. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).
20
The Court of Appeals was therefore wrong in concluding that the reasoning of Geduldig was not applicable to an action under Title VII. Since it is a finding of sex-based discrimination that must trigger, in a case such as this, the finding of an unlawful employment practice under § 703(a)(1), Geduldig is precisely in point in its holding that an exclusion of pregnancy from a disability-benefits plan providing general coverage is not a gender-based discrimination at all.
21
There is no more showing in this case than there was in Geduldig that the exclusion of pregnancy benefits is a mere "pretex(t) designed to effect an invidious discrimination against the members of one sex or the other." The Court of Appeals expressed the view that the decision in Geduldig had actually turned on whether or not a conceded discrimination was "invidious" but we think that in so doing it misread the quoted language from our opinion. As we noted in that opinion, a distinction which on its face is not sex related might nonetheless violate the Equal Protection Clause if it were in fact a subterfuge to accomplish a forbidden discrimination. But we have here no question of excluding a disease or disability comparable in all other respects to covered diseases or disabilities and yet confined to the members of one race or sex. Pregnancy is, of course, confined to women, but it is in other ways significantly different from the typical covered disease or disability. The District Court found that it is not a "disease" at all, and is often a voluntarily undertaken and desired condition, 375 F.Supp., at 375, 377. We do not therefore infer that the exclusion of pregnancy disability benefits from petitioner's plan is a simple pretext for discriminating against women. The contrary arguments adopted by the lower courts and expounded by our dissenting Brethren were largely rejected in Geduldig.
22
The instant suit was grounded on Title VII rather than the Equal Protection Clause, and our cases recognize that a prima facie violation of Title VII can be established in some circumstances upon proof that the effect of an otherwise facially neutral plan or classification is to discriminate against members of one class or another. See Washington v. Davis, 426 U.S. 229, 246-248, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 (1976). For example, in the context of a challenge, under the provisions of § 703(a)(2),13 to a facially neutral employment test, this Court held that a prima facie case of discrimination would be established if, even absent proof of intent, the consequences of the test were "invidiously to discriminate on the basis of racial or other impermissible classification," Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Even assuming that it is not necessary in this case to prove intent to establish a prima facie violation of § 703(a)(1), but cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-806, 93 S.Ct. 1817, 1824-1826, 36 L.Ed.2d 668 (1973), the respondents have not made the requisite showing of gender-based effect.14
23
As in Geduldig, respondents have not attempted to meet the burden of demonstrating a gender-based discriminatory effect resulting from the exclusion of pregnancy-related disabilities from coverage.15 Whatever the ultimate probative value of the evidence introduced before the District Court on this subject in the instant case, at the very least it tended to illustrate that the selection of risks covered by the Plan did not operate, in fact, to discriminate against women. As in Geduldig, we start from the indisputable baseline that "(t)he fiscal and actuarial benefits of the program . . . accrue to members of both sexes," 417 U.S., at 497 n. 20, 94 S.Ct., at 2492. We need not disturb the findings of the District Court to note that neither is there a finding, nor was there any evidence which would support a finding, that the financial benefits of the Plan "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," id., at 496, 94 S.Ct., at 2492. The Plan, in effect (and for all that appears), is nothing more than an insurance package, which covers some risks, but excludes others, see id., at 494, 496-497, 94 S.Ct., at 2491-2492.16 The "package" going to relevant identifiable groups we are presently concerned with General Electric's male and female employees covers exactly the same categories of risk, and is facially nondiscriminatory in the sense that "(t)here 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." Id., at 496-497, 94 S.Ct., at 2492. As there is no proof that the package is in fact worth more to men than to women, it is impossible to find any gender-based discriminatory effect in this scheme simply because women disabled as a result of pregnancy do not receive benefits; that is to say, gender-based discrimination does not result simply because an employer's disability-benefits plan is less than all-inclusive.17 For all that appears, pregnancy-related disabilities constitute an additional risk, unique to women, and the failure to compensate them for this risk does not destroy the presumed parity of the benefits, accruing to men and women alike, which results from the facially evenhanded inclusion of risks. To hold otherwise would endanger the commonsense notion that an employer who has no disability benefits program at all does not violate Title VII even though the "underinclusion" of risks impacts, as a result of pregnancy-related disabilities, more heavily upon one gender than upon the other.18 Just as there is no facial gender-based discrimination in that case, so, too, there is none here.
III
24
We are told, however, that this analysis of the congressional purpose underlying Title VII is inconsistent with the guidelines of the EEOC, which, it is asserted, are entitled to "great deference" in the construction of the Act, Griggs, 401 U.S., at 433-434, 91 S.Ct., at 854-855; Phillips v. Martin Marietta Corp., 400 U.S. 542, 545, 91 S.Ct. 496, 498, 27 L.Ed.2d 613 (1971) (Marshall, J., concurring). The guideline upon which respondents rely most heavily was promulgated in 1972, and states in pertinent part:
25
"Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, 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. . . . (Benefits) 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) (1975).19
26
In evaluating this contention it should first be noted that Congress, in enacting Title VII, did not confer upon the EEOC authority to promulgate rules or regulations pursuant to that Title. Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280 (1975).20 This does not mean that EEOC guidelines are not entitled to consideration in determining legislative intent, see Albemarle, supra; Griggs v. Duke Power Co., supra, 401 U.S., at 433-434, 91 S.Ct., at 854-855; Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94, 94 S.Ct. 334, 339, 38 L.Ed.2d 287 (1973). But it does mean that courts properly may accord less weight to such guidelines than to administrative regulations which Congress has declared shall have the force of law, see Standard Oil Co. v. Johnson, 316 U.S. 481, 484, 62 S.Ct. 1168, 1169-1170, 86 L.Ed. 1611 (1942), or to regulations which under the enabling statute may themselves supply the basis for imposition of liability, see, e. g., § 23(a). Securities Exchange Act of 1934, 15 U.S.C. § 78w(a). The most comprehensive statement of the role of interpretative rulings such as the EEOC guidelines is found in Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944), where the Court said:
27
"We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control."
28
The EEOC guideline in question does not fare well under these standards. It is not a contemporaneous interpretation of Title VII, since it was first promulgated eight years after the enactment of that Title. More importantly, the 1972 guideline flatly contradicts the position which the agency had enunciated at an earlier date, closer to the enactment of the governing statute. An opinion letter by the General Counsel of the EEOC, dated October 17, 1966, states:
29
"You have requested our opinion whether the above exclusion of pregnancy and childbirth as a disability under the long-term salary continuation plan would be in violation of Title VII of the Civil Rights Act of 1964.
30
"In a recent opinion letter regarding pregnancy, we have stated, 'The Commission policy in this area does not seek to compare an employer's treatment of illness or injury with his treatment of maternity since maternity is a temporary disability unique to the female sex and more or less to be anticipated during the working life of most women employees.' Therefore, it is our opinion that according to the facts stated above, a company's group insurance program which covers hospital and medical expenses for the delivery of employees' children, but excludes from its long-term salary continuation program those disabilities which result from pregnancy and childbirth would not be in violation of Title VII." App. 721-722.
31
A few weeks later, in an opinion letter expressly issued pursuant to 29 CFR § 1601.30 (1975), the EEOC's position was that "an insurance or other benefit plan may simply exclude maternity as a covered risk, and such an exclusion would not in our view be discriminatory." App. 735.
32
We have declined to follow administrative guidelines in the past where they conflicted with earlier pronouncements of the agency. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 858-859, n. 25, 95 S.Ct. 2051, 2063-2064, 44 L.Ed.2d 621 (1975); Espinoza v. Farah Mfg. Co., supra, 414 U.S., at 92-96, 94 S.Ct., at 339-340. In short, while we do not wholly discount the weight to be given the 1972 guideline, it does not receive high marks when judged by the standards enunciated in Skidmore, supra.
33
There are also persuasive indications that the more recent EEOC guideline sharply conflicts with other indicia of the proper interpretation of the sex-discrimination provisions of Title VII. The legislative history of Title VII's prohibition of sex discrimination is notable primarily for its brevity. Even so, however, Congress paid especial attention to the provisions of the Equal Pay Act, 29 U.S.C. § 206(d),21 when it amended § 703(h) of Title VII by adding the following sentence:
34
"It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of Title 29." 42 U.S.C. § 2000e-2(h).
35
This sentence was proposed as the Bennett Amendment to the Senate bill, 110 Cong.Rec. 13647 (1964), and Senator Humphrey, the floor manager of the bill, stated that the purpose of the amendment was to make it "unmistakably clear" that "differences of treatment in industrial benefit plans, including earlier retirement options for women, may continue in operation under this bill, if it becomes law," id., at 13663-13664. Because of this amendment, interpretations of § 6(d) of the Equal Pay Act are applicable to Title VII as well, and an interpretive regulation promulgated by the Wage and Hour Administrator under the Equal Pay Act explicitly states:
36
"If employer contributions to a plan providing insurance or similar benefits to employees are equal for both men and women, no wage differential prohibited by the equal pay provisions will result from such payments, even though the benefits which accrue to the employees in question are greater for one sex than for the other. The mere fact that the employer may make unequal contributions for employees of opposite sexes in such a situation will not, however, be considered to indicate that the employer's payments are in violation of section 6(d), if the resulting benefits are equal for such employees." 29 CFR § 800.116(d) (1975).
37
Thus, even if we were to depend for our construction of the critical language of Title VII solely on the basis of "deference" to interpretative regulations by the appropriate administrative agencies, we would find ourselves pointed in diametrically opposite directions by the conflicting regulations of the EEOC, on the one hand, and the Wage and Hour Administrator, on the other. Petitioner's exclusion of benefits for pregnancy disability would be declared an unlawful employment practice under § 703(a)(1), but would be declared not to be an unlawful employment practice under § 703(h).
38
We are not reduced to such total abdication in construing the statute. The EEOC guideline of 1972, conflicting as it does with earlier pronouncements of that agency, and containing no suggestion that some new source of legislative history had been discovered in the intervening eight years, stands virtually alone. Contrary to it are the consistent interpretation of the Wage and Hour Administrator, and the quoted language of Senator Humphrey, the floor manager of Title VII in the Senate. They support what seems to us to be the "plain meaning" of the language used by Congress when it enacted § 703(a)(1).
39
The concept of "discrimination," of course, was well known at the time of the enactment of Title VII, having been associated with the Fourteenth Amendment for nearly a century, and carrying with it a long history of judicial construction. When Congress makes it unlawful for an employer to "discriminate . . . because of . . . sex . . .," without further explanation of its meaning, we should not readily infer that it meant something different from what the concept of discrimination has traditionally meant, cf. Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2774, 2482, 41 L.Ed.2d 290 (1974); Ozawa v. United States, 260 U.S. 178, 193, 43 S.Ct. 65, 67, 67 L.Ed. 199 (1922). There is surely no reason for any such inference here, see Gemsco v. Walling, 324 U.S. 244, 260, 65 S.Ct. 605, 614-615, 89 L.Ed. 921 (1945).
40
We therefore agree with petitioner that its disability-benefits plan does not violate Title VII because of its failure to cover pregnancy-related disabilities. The judgment of the Court of Appeals is
41
Reversed.
42
Mr. Justice STEWART, concurring.
43
I join the opinion of the Court holding that General Electric's exclusion of benefits for disability during pregnancy is not a per se violation of § 703(a) (1) of Title VII, and that the respondents have failed to prove a discriminatory effect. Unlike my Brother BLACKMUN, I do not understand the opinion to question either Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, specifically, or the significance generally of proving a discriminatory effect in a Title VII case.
44
Mr. Justice BLACKMUN, concurring in part.
45
I join the judgment of the Court and concur in its opinion insofar as it holds (a) that General Electric's exclusion of disability due to pregnancy is not, per se, a violation of § 703(a)(1) of Title VII; (b) that the plaintiffs in this case therefore had at least the burden of proving discriminatory effect; and (c) that they failed in that proof. I do not join any inference or suggestion in the Court's opinion if any such inference or suggestion is there that effect may never be a controlling factor in a Title VII case, or that Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), is no longer good law.
46
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL concurs, dissenting.
47
The Court holds today that without violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., a private employer may adopt a disability plan that compensates employees for all temporary disabilities except one affecting exclusively women, pregnancy. I respectfully dissent. Today's holding not only repudiates the applicable administrative guideline promulgated by the agency charged by Congresss with implementation of the Act, but also rejects the unanimous conclusion of all six Courts of Appeals that have addressed this question. See Communications Workers v. American Tel. & Tel., 513 F.2d 1024 (CA2 1975), cert. pending, No. 74-1601; Wetzel v. Liberty Mut. Ins. Co., 511 F.2d 199 (CA3 1975), vacated on jurisdictional grounds, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976); Gilbert v. General Electric Co., 519 F.2d 661 (CA4 1975), (this case); Tyler v. Vickery, 517 F.2d 1089, 1097-1099 (CA5 1975); Satty v. Nashville Gas Co., 522 F.2d 850 (CA6 1975), cert. pending, No. 75-536; Hutchinson v. Lake Oswego School Dist. No. 7, 519 F.2d 961 (CA9 1975), cert. pending, No. 75-1049.
48
* This case is unusual in that it presents a question the resolution of which at first glance turns largely upon the conceptual framework chosen to identify and describe the operational features of the challenged disability program. By directing their focus upon the risks excluded from the otherwise comprehensive program, and upon the purported justifications for such exclusions, the Equal Employment Opportunity Commission, the women plaintiffs, and the lower courts reason that the pregnancy exclusion constitutes a prima facie violation of Title VII. This violation is triggered, they argue, because the omission of pregnancy from the program has the intent and effect of providing that "only women (are subjected) to a substantial risk of total loss of income because of temporary medical disability." Brief for EEOC as amicus curiae 12.
49
The Court's framework is diametrically different. It views General Electric's plan as representing a gender-free assignment of risks in accordance with normal actuarial techniques. From this perspective the lone exclusion of pregnancy is not a violation of Title VII insofar as all other disabilities are mutually covered for both sexes. This reasoning relies primarily upon the descriptive statement borrowed from Geduldig v. Aiello, 417 U.S. 484, 496-497, 94 S.Ct. 2485, 2491-2492, 41 L.Ed.2d 256 (1974): "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." Ante, at 409. According to the Court, this assertedly neutral sorting process precludes the pregnancy omission from constituting a violation of Title VII.
50
Presumably, it is not self-evident that either conceptual framework is more appropriate than the other, which can only mean that further inquiry is necessary to select the more accurate and realistic analytical approach. At the outset, the soundness of the Court's underlying assumption that the plan is the untainted product of a gender-neutral risk-assignment process can be examined against the historical backdrop of General Electric's employment practices and the existence or nonexistence of gender-free policies governing the inclusion of compensable risks. Secondly, the resulting pattern of risks insured by General Electric can then be evaluated in terms of the broad social objectives promoted by Title VII. I believe that the first inquiry compels the conclusion that the Court's assumption that General Electric engaged in a gender-neutral risk-assignment process is purely fanciful. The second demonstrates that the EEOC's interpretation that the exclusion of pregnancy from a disability insurance plan is incompatible with the overall objectives of Title VII has been unjustifiably rejected.
II
51
Geduldig v. Aiello, supra, purports to be the starting point for the Court's analysis. There a state-operated disability insurance system containing a pregnancy exclusion was held not to violate the Equal Protection Clause. Although it quotes primarily from one footnote of that opinion at some length, ante, at 134-135, the Court finally does not grapple with Geduldig on its own terms.
52
Considered most favorably to the Court's view, Geduldig established the proposition that a pregnancy classification standing alone cannot be said to fall into the category of classifications that rest explicitly on "gender as such," 417 U.S., at 496 n. 20, 94 S.Ct., at 2492. Beyond that, Geduldig offers little analysis helpful to decision of this case. Surely it offends common sense to suggest, ante, at 136, that a classification revolving around pregnancy is not, at the minimum, strongly "sex related." See, e. g., Cleveland Board of Education v. LaFleur, 414 U.S. 632, 652, 94 S.Ct. 791, 802, 39 L.Ed.2d 52 (1974) (Powell, J., concurring). Indeed, even in the insurance context where neutral actuarial principles were found to have provided a legitimate and independent input into the decisionmaking process, Geduldig's outcome was qualified by the explicit reservation of a case where it could be demonstrated that a pregnancy-centered differentiation is used as a "mere pretext . . . designed to effect an invidious discrimination against the members of one sex . . .." 417 U.S., at 496-497, n. 20, 94 S.Ct., at 2492.
53
Thus, Geduldig itself obliges the Court to determine whether the exclusion of a sex-linked disability from the universe of compensable disabilities was actually the product of neutral, persuasive actuarial considerations, or rather stemmed from a policy that purposefully downgraded women's role in the labor force. In Geduldig, that inquiry coupled with the normal presumption favoring legislative action satisfied the Court that the pregnancy exclusion in fact was prompted by California's legitimate fiscal concerns, and therefore that California did not deny equal protection in effectuating reforms " 'one step at a time.' " Id., at 495, 94 S.Ct., at 2491. But the record in this case makes such deference impossible here. Instead, in reaching its conclusion that a showing of purposeful discrimination has not been made, ante, at 136, the Court simply disregards a history of General Electric practices that have served to undercut the employment opportunities of women who become pregnant while employed.1 Moreover, the Court studiously ignores the undisturbed conclusion of the District Court that General Electric's "discriminatory attitude" toward women was "a motivating factor in its policy," 375 F.Supp. 367, 383 (E.D.Va.1974), and that the pregnancy exclusion was "neutral (neither) on its face" nor "in its intent." Id., at 382.2
54
Plainly then, the Court's appraisal of General Electric's policy as a neutral process of sorting risks and "not a gender-based discrimination at all," ante, at 136, cannot easily be squared with the historical record in this case. The Court, therefore, proceeds to a discussion of purported neutral criteria that suffice to explain the lone exclusion of pregnancy from the program. The Court argues that pregnancy is not "comparable" to other disabilities since it is a "voluntary" condition rather than a "disease." Ibid. The fallacy of this argument is that even if "non-voluntariness" and "disease" are to be construed as the operational criteria for inclusion of a disability in General Electric's program, application of these criteria is inconsistent with the Court's gender-neutral interpretation of the company's policy.
55
For example, the characterization of pregnancy as "voluntary"3 is not a persuasive factor, for as the Court of Appeals correctly noted, "other than for childbirth disability, (General Electric) had never construed its plan as eliminating all so-called 'voluntary' disabilities," including sport injuries, attempted suicides, venereal disease, disabilities incurred in the commission of a crime or during a fight, and elective cosmetic surgery. 519 F.2d, at 665. Similarly, the label "disease" rather than "disability" cannot be deemed determinative since General Electric's pregnancy disqualification also excludes the 10% of pregnancies that end in debilitating miscarriages 375 F.Supp., at 377, the 10% of cases where pregnancies are complicated by "diseases" in the intuitive sense of the word, ibid., and cases where women recovering from childbirth are stricken by severe diseases unrelated to pregnancy.4
56
Moreover, even the Court's principal argument for the plan's supposed gender neutrality cannot withstand analysis. The central analytical framework relied upon to demonstrate the absence of discrimination is the principle described in Geduldig : "There is no risk from which men are protected and women are not . . . (and) no risk from which women are protected and men are not." 417 U.S., at 496-497, 94 S.Ct., at 2492, quoted, ante, at 138. In fostering the impression that it is faced with a mere underinclusive assignment of risks in a gender-neutral fashion that is, all other disabilities are insured irrespective of gender the Court's analysis proves to be simplistic and misleading. For although all mutually contractible risks are covered irrespective of gender, but see n. 4 supra, the plan also insures risks such as prostatectomies, vasectomies, and circumcisions that are specific to the reproductive system of men and for which there exist no female counterparts covered by the plan. Again, pregnancy affords the only disability, sex-specific or otherwise, that is excluded from coverage.5 Accordingly, the District Court appropriately remarkeds "(T)he concern of defendants in reference to pregnancy risks, coupled with the apparent lack of concern regarding the balancing of other statistically sex-linked disabilities, buttresses the Court's conclusion that the discriminatory attitude characterized elsewhere in the Court's findings was in fact a motivating factor in its policy." 375 F.Supp., at 383.
57
If decision of this case, therefore, turns upon acceptance of the Court's view of General Electric's disability plan as a sex-neutral assignment of risks, or plaintiffs' perception of the plan as a sex-conscious process expressive of the secondary status of women in the company's labor force, the history of General Electric's employment practices and the absence of definable gender-neutral sorting criteria under the plan warrant rejection of the Court's view in deference to the plaintiffs'. Indeed, the fact that the Court's frame of reference lends itself to such intentional, sex-laden decisionmaking makes clear the wisdom and propriety of the EEOC's contrary approach to employment disability programs.
III
58
Of course, the demonstration of purposeful discrimination is not the only ground for recovery under Title VII. Notwithstanding unexplained and inexplicable implications to the contrary in the majority opinion,6 this Court, see Washington v. Davis, 426 U.S. 229, 238-239, 96 S.Ct. 2040, 2046-2047, 48 L.Ed.2d 597 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 422, 95 S.Ct. 2362, 2373-2374, 45 L.Ed.2d 280 (1975); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971), and every Court of Appeals7 now have firmly settled that a prima facie violation of Title VII, whether under § 703(a)(1) or § 703(a)(2), also is established by demonstrating that a facially neutral classification has the effect of discriminating against members of a defined class.
59
General Electric's disability program has three divisible sets of effects. First, the plan covers all disabilities that mutually afflict both sexes. But see n. 4, supra. Second, the plan insures against all disabilities that are male-specific or have a predominant impact on males. Finally, all female-specific and female-impacted disabilities are covered, except for the most prevalent, pregnancy. The Court focuses on the first factor the equal inclusion of mutual risks and therefore understandably can identify no discriminatory effect arising from the plan. In contrast, the EEOC and plaintiffs rely upon the unequal exclusion manifested in effects two and three to pinpoint an adverse impact on women. However one defines the profile of risks protected by General Electric, the determinative question must be whether the social policies and aims to be furthered by Title VII and filtered through the phrase "to discriminate" contained in § 703(a)(1) fairly forbid an ultimate pattern of coverage that insures all risks except a commonplace one that is applicable to women but not to men.
60
As a matter of law and policy, this is a paradigm example of the type of complex economic and social inquiry that Congress wisely left to resolution by the EEOC pursuant to its Title VII mandate. See H.R.Rep.No.92-238, p. 8 (1972). And, accordingly, prior Title VII decisions have consistently acknowledged the unique persuasiveness of EEOC interpretations in this area. These prior decisions, rather than providing merely that Commission guidelines are "entitled to consideration," as the Court allows, ante, at 141, hold that the EEOC's interpretations should receive "great deference." Albemarle Paper Co. v. Moody, supra, 422 U.S., at 431, 95 S.Ct., at 2378; Griggs v. Duke Power Co., supra, 401 U.S., at 433-434, 91 S.Ct., at 854-855; Phillips v. Martin Marietta Corp., 400 U.S. 542, 545, 91 S.Ct. 496, 498, 27 L.Ed.2d 613 (1971) (Marshall, J., concurring). Nonetheless, the Court today abandons this standard in order squarely to repudiate the 1972 Commission guideline providing that "(d)isabilities caused or contributed to by pregnancy . . . are, for all job-related purposes, temporary disabilities . . . (under) any health or temporary disability insurance or sick leave plan . . .." 29 CFR § 1604.10(b) (1975). This rejection is attributed to two interrelated events: an 8-year delay between Title VII's enactment and the promulgation of the Commission's guideline, and interim letters by the EEOC's General Counsel expressing the view that pregnancy is not necessarily includable as a compensable disability. Neither event supports the Court's refusal to accord "great deference" to the EEOC's interpretation.
61
It is true, as noted, ante, at 143, that only brief mention of sex discrimination appears in the early legislative history of Title VII. It should not be surprising, therefore, that the EEOC, charged with a fresh and uncharted mandate, candidly acknowledged that further study was required before the contours of sex discrimination as proscribed by Congress could be defined. See 30 Fed.Reg. 14927 (1965). Although proceeding cautiously, the Commission from the outset acknowledged the relationship between sex discrimination and pregnancy, announcing that "policies would have to be devised which afforded female employees reasonable job protection during periods of pregnancy." EEOC First Annual Report to Congress, Fiscal Year 1965-1966 p. 40 (1967). During the succeeding seven years, EEOC worked to develop a coherent policy toward pregnancy-oriented employment practices both through the pursuit of its normal adjudicatory functions8 and by engaging in comprehensive studies with such organizations as the President's Citizens' Advisory Council on the Status of Women. See, e. g., Address of Jacqueline G. Gutwillig, Chairwoman, Citizens' Advisory Council, cited in App. 1159. These investigations on the role of pregnancy in the labor market coupled with the Commission's "review . . . (of) its case decisions on maternity preparatory to issuing formal guidelines," id., at 1161, culminated in the 1972 guideline, the agency's first formalized, systematic statement on "(e)mployment policies relating to pregnancy and childbirth."
62
Therefore, while some eight years had elapsed prior to the issuance of the 1972 guideline, and earlier opinion letters had refused to impose liability on employers during this period of deliberation, no one can or does deny that the final EEOC determination followed thorough and well-informed consideration. Indeed, realistically viewed, this extended evaluation of an admittedly complex problem and an unwillingness to impose additional, potentially premature costs on employers during the decisionmaking stages ought to be perceived as a practice to be commended. It is bitter irony that the care that preceded promulgation of the 1972 guideline is today condemned by the Court as tardy indecisiveness, its unwillingness irresponsibly to challenge employers' practices during the formative period is labeled as evidence of inconsistency, and this indecisiveness and inconsistency are bootstrapped into reasons for denying the Commission's interpretation its due deference.
63
For me, the 1972 guideline represents a particularly conscientious and reasonable product of EEOC deliberations and, therefore, merits our "great deference." Certainly, I can find no basis for concluding that the guideline is out of step with congressional intent. See Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94, 94 S.Ct. 334, 339, 38 L.Ed.2d 287 (1973). On the contrary, prior to 1972, Congress enacted just such a pregnancy-inclusive rule to govern the distribution of benefits for "sickness" under the Railroad Unemployment Insurance Act, 45 U.S.C. § 351(k)(2). Furthermore, shortly following the announcement of the EEOC's rule, Congress approved and the President signed an essentially identical promulgation by the Department of Health, Education and Welfare under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (1970 ed., Supp. V). See 45 CFR § 86.57(c) (1976). Moreover, federal workers subject to the jurisdiction of the Civil Service Commission now are eligible for maternity and pregnancy coverage under their sick leave program. See Federal Personnel Manual, ch. 630, subch. 13, § 13-2 (FPM Supp. 990-2, May 6, 1975).
64
These policy formulations are reasonable responses to the uniform testimony of governmental investigations which show that pregnancy exclusions built into disability programs both financially burden women workers and act to break down the continuity of the employment relationship, thereby exacerbating women's comparatively transient role in the labor force. See, e. g., U.S. Dept. of Commerce, Consumer Income (Series P-60, No. 93, July 1974); Women's Bureau, U.S. Dept. of Labor, Underutilization of Women Workers (rev. ed. 1971). In dictating pregnancy coverage under Title VII, the EEOC's guideline merely settled upon a solution now accepted by every other Western industrial country. Dept. of Health, Education, and Welfare, Social Security Programs Throughout the World, 1971, pp. ix, xviii, xix (Research Report No. 40). I find it difficult to comprehend that such a construction can be anything but a "sufficiently reasonable" one to be "accepted by the reviewing courts." Train v. Natural Resources Def. Council, 421 U.S. 60, 75, 95 S.Ct. 1470, 1480, 43 L.Ed.2d 731 (1975).
65
The Court's belief that the concept of discrimination cannot reach disability policies effecting "an additional risk, unique to women . . .," ante, at 139, is plainly out of step with the decision three Terms ago in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), interpreting another provision of the Civil Rights Act. There a unanimous Court recognized that discrimination is a social phenomenon encased in a social context and therefore, unavoidably takes its meaning from the desired end products of the relevant legislative enactment, end products that may demand due consideration to the uniqueness of "disadvantaged" individuals.9 A realistic understanding of conditions found in today's labor environment warrants taking pregnancy into account in fashioning disability policies. Unlike the hypothetical situations conjectured by the Court, ante, at 139-140, and n. 17, contemporary disability programs are not creatures of a social or cultural vacuum devoid of stereotypes and signals concerning the pregnant woman employee. Indeed, no one seriously contends that General Electric or other companies actually conceptualized or developed their comprehensive insurance programs disability-by-disability in a strictly sex-neutral fashion.10 Instead, the company has devised a policy that, but for pregnancy, offers protection for all risks, even those that are "unique to" men or heavily male dominated. In light of this social experience, the history of General Electric's employment practices, the otherwise all-inclusive design of its disability program, and the burdened role of the contemporary working woman, the EEOC's construction of sex discrimination under § 703(a)(1) is fully consonant with the ultimate objective of Title VII, "to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered (sexually) stratified job environments to the disadvantage of (women)." McDonnell Douglas Corp. v. Green, 411 U.S., at 800, 93 S.Ct., at 1823.
66
I would affirm the judgment of the Court of Appeals.
67
Mr. Justice STEVENS, dissenting.
68
The word "discriminate" does not appear in the Equal Protection Clause.1 Since the plaintiffs' burden of proving a prima facie violation of that constitutional provision is significantly heavier than the burden of proving a prima facie violation of a statutory prohibition against discrimination,2 the constitutional holding in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), does not control the question of statutory interpretation presented by this case. And, of course, when it enacted Title VII of the Civil Rights Act of 1964, Congress could not possibly have relied on language which this Court was to use a decade later in the Geduldig opinion.3 We are, therefore, presented with a fresh, and rather simple, question of statutory construction: Does a contract between a company and its employees which treats the risk of absenteeism caused by pregnancy differently from any other kind of absence discriminate against certain individuals because of their sex?
69
An affirmative answer to that question would not necessarily lead to a conclusion of illegality, because a statutory affirmative defense might justify the disparate treatment of pregnant women in certain situations. In this case, however, the company has not established any such justification. On the other hand, a negative answer to the threshold question would not necessarily defeat plaintiffs' claim because facially neutral criteria may be illegal if they have a discriminatory effect.4 An analysis of the effect of a company's rules relating to absenteeism would be appropriate if those rules referred only to neutral criteria, such as whether an absence was voluntary or involuntary, or perhaps particularly costly. This case, however, does not involve rules of that kind.
70
Rather, the rule at issue places the risk of absence caused by pregnancy in a class by itself.5 By definition, such a rule discriminates on account of sex; for it is the capacity to become pregnant which primarily differentiates the female from the male. The analysis is the same whether the rule relates to hiring, promotion, the acceptability of an excuse for absence, or an exclusion from a disability insurance plan. Accordingly, without reaching the questions of motive, administrative expertise, and policy, which Mr. Justice BRENNAN so persuasively exposes, or the question of effect to which Mr. Justice STEWART and Mr. Justice BLACKMUN refer, I conclude that the language of the statute plainly requires the result which the Courts of Appeals have reached unanimously.
1
All the parties to the suit joined in petitioning for a writ of certiorari. General Electric was the moving party before the Court of Appeals, where the judgment of the District Court was affirmed. The parties have agreed that General Electric is to be deemed the petitioner for purposes of briefing and oral argument, a convention we adopt for the writing of this opinion.
2
Respondents also represent a class of women employees who have been denied such benefits since September 14, 1971, and seek damages arising from this denial.
3
With respect to the Plan, General Electric is, in effect, a self-insurer. While General Electric has obtained, for employees outside California, an insurance policy from the Metropolitan Life Insurance Co., this policy involves the payment of a tentative premium only, subject to adjustment in the light of actual experience. Pretrial Stipulation of Facts, P 11, app. 175-176. In effect, therefore, the Metropolitan Life Insurance Co. is used to provide the administrative service of processing claims, while General Electric remains, for all practical purposes, a self-insurer.
4
Additionally, benefit payment coverage under the Plan for all disabilities, whether or not related to pregnancy, terminates "on the date you cease active work because of total disability or pregnancy, except that if you are entitled to Weekly Benefits for a disability existing on such date of cessation" benefit payments will be continued in accordance with the provisions of the Plan. In cases of personal leave, layoff, or strike, however, the coverage for future nonoccupational sickness or accident disability is continued for 31 days, ibid.
In the case of respondent Emma Furch, who took a pregnancy leave on April 7, 1972, and who was hospitalized with a non-pregnancy-related pulmonary embolism on April 21, 1972, a claim was filed for disability benefits under the Plan solely for the period of absence due to the pulmonary embolism. The claim was rejected "since such benefits have been discontinued in accordance with the provisions of the General Electric Insurance Plan."
5
Plaintiffs in the action were seven female employees; the International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC (IUE); and the latter's affiliate, Local 161, which is a joint collective-bargaining representative, with the IUE, of the hourly paid production and maintenance employees at General Electric's Salem, Va., plant.
6
The District Court made the following "specific findings":
"1. While pregnancy is perhaps most often voluntary, a substantial incidence of negligent or accidental conception also occurs.
"2. Pregnancy, per se, is not a disease.
"3. A pregnancy without complications is normally disabling for a period of six to eight weeks, which time includes the period from labor and delivery, or slightly before, through several weeks of recuperation." 375 F.Supp. 367, at 377.
7
Ibid.
8
"Five percent of pregnancies are complicated by diseases which are found in nonpregnant persons but which may have been stimulated by pregnancy. Five percent of pregnancies are complicated by pregnancy-related diseases. These complications are diseases which may lead to disability." Ibid.
9
The District Court included in its opinion the following charts from a stipulation dated July 24, 1973:
"143. During 1970 GE's experience, by sex, with respect to claims under its weekly sickness and accident disability insurance coverage was as follows:
Male Female
---------- ----------
No. of claims (new) 19405 15509
Average duration of claim 48 days 52 days
No. of new claims per thousand employees 77 173
Average No. of employees covered 246,492 89,705
Total benefits paid $11,279,110 $7,405,790
Average cost per insured
employee of total
benefits paid $45.76 $82.57
"144. During 1971, GE's experience, by sex, with respect to claims under its weekly sickness and accident disability insurance coverage was as follows:
Male Female
------------ -----------
No. of claims (new) 22,987 17,719
Average duration of claim 47 days 52 days
No. of new claims per thousand employees 99 217
Average No. of employees covered 231,026 81,469
Totral benefits paid 14,343,000 $9,191,195
Average cost per insured
employee of total
benefits paid $62.08 $112.91"
Ibid.
10
At trial, General Electric introduced, in addition to the material cited in n. 9, supra, the testimony of Paul Jackson, an actuary, who calculated that the Plan presently "costs 170% more for females than males . . . ." Id., at 378.
11
"The present plan is objectionable in that it excludes from coverage a unique disability which affects only members of the female sex, while no suggestion is made to exclude disabilities which can be said to affect only males. Additionally, the Court gives no weight to the suggestion that the actuarial value of the coverage now provided is equalized as between men and women. Defenses must be bottomed on evidence, and such, in this regard, is lacking here.
"Whatever inferences may be suggested by the statistical data presented, the Court simply cannot presume to draw any precise conclusions as to the actuarial value of the coverage provided under the present plan, or the effect of including pregnancy related disabilities on the basis of that limited data." Id., at 382-383.
12
As noted, supra, at 127 n. 1, this is a joint petition. Respondents have presented several additional questions, not all of which merit treatment in this opinion. We have concluded that they are all without merit.
13
This subsection provides that it shall be an unlawful employment practice for an employer
"(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(2).
14
Respondents, who seek to establish discrimination, have the traditional civil litigation burden of establishing that the acts they complain of constituted discrimination in violation of Title VII. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); McDonnell Douglas Corp. v. Green, 411 U.S. 792, at 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668. In Griggs, the burden placed on the employer "of showing that any given requirement must have a manifest relationship to the employment in question," 401 U.S., at 432, 91 S.Ct., at 854, did not arise until discriminatory effect had been shown, Albemarle, supra, 422 U.S., at 425, 95 S.Ct., at 2375.
15
Absent a showing of gender-based discrimination, as that term is defined in Geduldig, or a showing of gender-based effect, there can be no violation of § 703(a)(1).
16
That General Electric self-insures does not change the fact that it is, in effect, acting as an insurer, just as the State of California was acting in Geduldig, 417 U.S., at 492, 94 S.Ct., at 2489-2490.
17
Absent proof of different values, the cost to "insure" against the risks is, in essence, nothing more than extra compensation to the employees, in the form of fringe benefits. If the employer were to remove the insurance fringe benefits and, instead, increase wages by an amount equal to the cost of the "insurance," there would clearly be no gender-based discrimination, even though a female employee who wished to purchase disability insurance that covered all risks would have to pay more than would a male employee who purchased identical disability insurance, due to the fact that her insurance had to cover the "extra" disabilities due to pregnancy. While respondents seem to acknowledge that the failure to provide any benefit plan at all would not constitute sex-based discrimination in violation of Title VII, see n. 18, infra, they illogically also suggest that the present scheme does violate Title VII because:
"A female must spend her own money to buy a personal disability policy covering pregnancy disability if she wants to be fully insured against a period of disability without income, whereas a male without extra expenditure is fully insured by GE against every period of disability." Supplemental Brief for Respondents on Reargument 11. Yet, in both cases the instant case and the case where there is no disability coverage at all the ultimate result is that a woman who wished to be fully insured would have to pay an incremental amount over her male counterpart due solely to the possibility of pregnancy-related disabilities. Title VII's proscription on discrimination does not, in either case, require the employer to pay that incremental amount. The District Court was wrong in assuming, as it did, 375 F.Supp., at 383, that Title VII's ban on employment discrimination necessarily means that "greater economic benefit(s)" must be required to be paid to one sex or the other because of their differing roles in "the scheme of human existence."
18
Respondents tacitly admit that this situation would not violate Title VII. They acknowledge that "GE had no obligation to establish any fringe benefit program," Brief for Respondents 143. Moreover, the difficulty with their contention that General Electric engaged in impermissible sex discrimination is vividly portrayed in their closing suggestion that "(i)f paying for pregnancy discriminates within the sphere of classification by sex, so does the failure to pay," Response of Respondents to Reply Brief for Petitioner on Reargument 7. As that statement, and its converse, indicate, perceiving the issue in terms of "sex discrimination" quickly places resolution of this issue into a no-win situation. See also Supplemental Brief for Respondents on Reargument 59 ("(W)e believe that imposing on employees either unequal costs when benefits are equal or unequal benefits when costs are equal violates the right of each individual employee to be treated equally with each individual employee of the opposite sex . . . "). Troublesome interpretative problems such as this reinforce our belief that Congress, in prohibiting sex-based discrimination in Title VII, did not intend to depart from the longstanding meaning of "discrimination," cf. Jefferson v. Hackney, 406 U.S. 535, 548-549, 92 S.Ct. 1724, 1732-1733, 32 L.Ed.2d 285 (1972).
19
The other regulation cited by respondents, 29 CFR § 1604.9(b) (1975), simply restates the statutory proposition that it is an unlawful employment practice to discriminate "between men and women with regard to fringe benefits."
20
The EEOC has been given "authority from time to time to issue . . . suitable procedural regulations to carry out the provisions of this subchapter," § 713(a), 42 U.S.C. § 2000e-12(a). No one contends, however, that the above-quoted regulation is procedural in nature or in effect.
21
Section 6(d)(1) of the Equal Pay Act, 29 U.S.C. § 206(d)(1), provides, in pertinent part:
"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 . . . ."
1
General Electric's disability program was developed in an earlier era when women openly were presumed to play only a minor and temporary role in the labor force. As originally conceived in 1926, General Electric offered no benefit plan to its female employees because " 'women did not recognize the responsibilities of life, for they probably were hoping to get married soon and leave the company.' " App. 958, excerpted from D. Loth, Swope of G.E.: Story of Gerard Swope and General Electric in American Business (1958). It was not until the 1930's and 1940's that the company made female employees eligible to participate in the disability program. In common with general business practice, however, General Electric continued to pursue a policy of taking pregnancy and other factors into account in order to scale women's wages at two-thirds the level of men's. Id., at 1002. More recent company policies reflect common stereotypes concerning the potentialities of pregnant women, see, e. g., Cleveland Board of Education v. LaFleur, 414 U.S. 632, 644, 94 S.Ct. 791, 798, 39 L.Ed.2d 52 (1974), and have coupled forced maternity leave with the nonpayment of disability payments. Thus, the District Court found: "In certain instances it appears that the pregnant employee was required to take leave of her position three months prior to birth and not permitted to return until six weeks after the birth. In other instances the
periods varied . . . . In short, of all the employees it is only pregnant women who have been required to cease work regardless of their desire and physical ability to work and only they have been required to remain off their job for an arbitrary period after the birth of their child." 375 F.Supp. 367, 385. In February 1973, approximately coinciding with commencement of this suit, the company abandoned its forced-maternity-leave policy by formal directive.
2
The Court of Appeals did not affirm on the basis of this finding, since it concluded that "the statute looks to 'consequences,' not intent," and "(a)ny discrimination, such as that here, which is 'inextricably sex-linked' in consequences and result is violative of the Act." 519 F.2d 661, 664.
3
Of course, even the proposition that pregnancy is a voluntary condition is overbroad, for the District Court found that "a substantial incidence of negligent or accidental conception also occurs." 375 F.Supp., at 377. I may assume, however, for purposes of this argument, that the high incidence of voluntary pregnancies and the inability to differentiate between voluntary and involuntary conceptions, except perhaps through obnoxious, intrusive means, could justify the decision-maker's treating pregnancies as voluntarily induced.
4
The experience of one of the class plaintiffs is instructive of the reach of the pregnancy exclusion. On April 5, 1972, she took a pregnancy leave, delivering a stillborn baby some nine days later. Upon her return home, she suffered a blood clot in the lung, a condition unrelated to her pregnancy, and was rehospitalized. The company declined her claim for disability payments on the ground that pregnancy severed her eligibility under the plan. See id., at 372. Had she been separated from work for any other reason for example, during a work stoppage the plan would have fully covered the embolism.
5
Indeed, the shallowness of the Court's "underinclusive" analysis is transparent. Had General Electric assembled a catalogue of all ailments that befall humanity, and then systematically proceeded to exclude from coverage every disability that is female-specific or predominantly afflicts women, the Court could still reason as here that the plan operates equally: Women, like men, would be entitled to draw disability payments for their circumcisions and prostatectomies, and neither sex could claim payment for pregnancies, breast cancer, and the other excluded female-dominated disabilities. Along similar lines, any disability that occurs disproportionately in a particular group sickle-cell anemia, for example could be freely excluded from the plan without troubling the Court's analytical approach.
6
The cryptic "but cf." citation to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), ante, at 137, is perhaps the most mystifying. McDonnell involved a private nonclass action under § 703(a) (1) of Title VII in which the plaintiff explicitly complained that he was discharged from employment for racial, rather than licit, motives. 411 U.S., at 796, 93 S.Ct., at 1821. In such a case, where questions of motivation openly form the thrust of an individual plaintiff's complaint, the "effects" that company policies may have had on an entire class of persons understandably are only tangentially placed in issue, see id., at 805 n. 19, 93 S.Ct., at 1826. Even so, the Court expressly held that a prima facie violation of Title VII could be proved without affirmatively demonstrating that purposeful discrimination had occurred. Instead, the Court concluded that such an illicit purpose is inferable from the interplay of four factors which together reveal that the employers' policies have worked to disadvantage the complainant vis-Ea-vis other prospective employees. See id., at 802, 93 S.Ct., at 1824. Only if the employer then satisfies the burden of articulating "some legitimate, nondiscriminatory reason for the employee's rejection," ibid., 93 S.Ct., at 1824, must the latter actually seek to establish an intent to discriminate. Id., at 804, 93 S.Ct., at 1825. Even at this juncture, however, McDonnell makes clear that statistical evidence of the racial composition of the labor force that is, a statistical showing of adverse impact on the protected group of which the individual plaintiff is part will be persuasive evidence that the failure to rehire the particular complainant "conformed to a general pattern of discrimination against" his group. Id., at 805, 93 S.Ct., at 1825. Thus, McDonnell went far in allowing proof of "effect," even in the setting of an individualized rather than group claim of discrimination.
Equally unacceptable is the implication in the penultimate paragraph of the opinion, ante, at 145, that the Fourteenth Amendment standard of discrimination is coterminous with that applicable to Title VII. Not only is this fleeting dictum irrelevant to the reasoning that precedes it, not only does it conflict with a long line of cases to the contrary, infra, and at this page, but it is flatly contradicted by the central holding of last Term's Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597, 44 U.S.L.W. 4789, 4792 (1976): "We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today."
7
See Boston Chapter, NAACP v. Beecher, 504 F.2d 1017, 1020 (CA1 1974); United States v. Wood, Wire & Metal Lathers, Local Union 46, 471 F.2d 408, 414 n. 11 (CA2 1973); Pennsylvania v. O'Neill, 473 F.2d 1029 (CA3 1973) (en banc); United States v. Chesapeake & Ohio R. Co., 471 F.2d 582, 586 (CA4 1972); United States v. Hayes Int'l Corp., 456 F.2d 112, 120 (CA5 1972); United States v. Masonry Contractors Assn. of Memphis, Inc., 497 F.2d 871, 875 (CA6 1974); United States v. Carpenters, 457 F.2d 210, 214 (CA7 1972); United States v. N. L. Industries, Inc., 479 F.2d 354, 368 (CA8 1973); United States v. Ironworkers Local 86, 443 F.2d 544, 550-551 (CA9 1971); Muller v. United States Steel Corp., 509 F.2d 923, 927 (CA10 1975); Davis v. Washington, 168 U.S.App.D.C. 42, 46, 512 F.2d 956, 960 (1975), rev'd on constitutional grounds, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).
Indeed, following Griggs, Congress in 1972 revised Title VII, and expressly endorsed use of the "effect only" test outlined therein in identifying "increasingly complex" "forms and incidents of discrimination" that "may not appear obvious at first glance." See H.R.Rep.No.92-238, p. 8 (1972).
8
For synopses of the Commission's positions regarding pregnancy and sex discrimination adopted in the course of administrative decisionmaking and litigation activities, see the EEOC's Annual Reports to Congress.
9
Lau held that the failure to provide special language instruction to Chinese-speaking students in San Francisco schools violated the ban against racial or national origin discrimination contained in § 601 of the Civil Rights Act of 1964. The Court concluded that the Act, as interpreted by the administrative regulations promulgated by the Department of Health, Education, and Welfare addressed "effect(s) (to discriminate) even though no purposeful design is present," and ultimately sought to further the broad goal of insuring "a meaningful opportunity to participate in the (schools') educational program . . . ." 414 U.S., at 568, 94 S.Ct., at 789. Faced with such a generalized objective, the Court repudiated the analysis of the Court of Appeals which had relied upon San Francisco's commitment of equal educational offerings and resources to every child as the basis for concluding that Chinese students have suffered no discrimination due to the failure to adjust the school program to remedy their unique language deficiencies. Instead, the Court agreed that the anti-discrimination language fairly can be read "to require affirmative remedial efforts to give special attention to linguistically deprived children." Id., at 571, 94 S.Ct., at 791 (Stewart, J., concurring). Similarly, given the broad social objectives that underlie Title VII, see infra, at 160, and General Electric's apparent unhesitancy to take into account the unique physical characteristics of their male workers in defining the breadth of disability coverage, see supra, at 152, ample support appears for upholding the EEOC's view that pregnancy must be treated accordingly.
10
See, e. g., n. 1, supra.
1
The word does, however, appear in a number of statutes, but has by no means been given a uniform interpretation in those statutes. Compare FTC v. Morton Salt Co., 334 U.S. 37, 44-45, 68 S.Ct. 822, 827-828, 92 L.Ed. 1196 (1948) (Robinson-Patman Act) with NLRB v. Great Dane Trailers, 388 U.S. 26, 32-35, 87 S.Ct. 1792, 1796-1798, 18 L.Ed.2d 1027 (1967) (National Labor Relations Act).
2
Washington v. Davis, 426 U.S. 229, at 238-248, 96 S.Ct. 2040 at 2046-2052, 48 L.Ed.2d 597 (1976).
3
Quite clearly Congress could not have intended to adopt this Court's analysis of sex discrimination because it was seven years after the statute was passed that the Court first intimated that the concept of sex discrimination might have some relevance to equal protection analysis. See Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).
4
Griggs v. Duke Power Co., 401 U.S. 424, 429-432, 91 S.Ct. 849, 852-854, 28 L.Ed.2d 158 (1971).
5
It is not accurate to describe the program as dividing " 'potential recipients into two groups pregnant women and nonpregnant persons.' " Ante, at 135. Insurance programs, company policies, and employment contracts all deal with future risks rather than historic facts. The classification is between persons who face a risk of pregnancy and those who do not.
Nor is it accurate to state that under the plan " '(t)here is no risk from which men are protected and women are not.' " Ibid. If the word "risk" is used narrowly, men are protected against the risks associated with a prostate operation whereas women are not. If the word is used more broadly to describe the risk of uncompensated unemployment caused by physical disability, men receive total protection (subject to the 60% and 26-week limitations) against that risk whereas women receive only partial protection.
| 12
|
429 U.S. 167
97 S.Ct. 421
50 L.Ed.2d 376
CITY OF MADISON, JOINT SCHOOL DISTRICT NO. 8, et al., Appellants,v.WISCONSIN EMPLOYMENT RELATIONS COMMISSION et al.
No. 75-946.
Argued Oct. 12, 1976.
Decided Dec. 8, 1976.
Syllabus
During the course of a regularly scheduled, open meeting of appellant Board of Education, public discussion turned to currently pending labor negotiations between the board and the teachers' union. One speaker was a nonunion teacher who, over union objection, addressed one topic of the pending negotiations, namely, the union's demand for a "fair share" clause, which would require all teachers (whether union members or not) to pay union dues. He read a petition signed by the teachers in the district, calling for postponement of the issue until it could be given closer examination by an impartial committee. Subsequently, after a collective-bargaining agreement had been signed containing all the union's demands except the "fair share" clause, the union filed a complaint with the appellee Wisconsin Employment Relations Commission (WERC), claiming that the board had committed a prohibited labor practice in violation of Wisconsin law by permitting the nonunion teacher to speak at its public meeting because that constituted negotiations by the board with a member of the bargaining unit other than the exclusive collective-bargaining representative. The WERC found the board guilty of the prohibited labor practice and ordered that it immediately cease and desist from permitting any employees but union officials to appear and speak at board meetings on matters subject to collective bargaining. The WERC was upheld on appeal, the Wisconsin Supreme Court concluding that the nonunion teacher's statement before the board constituted "negotiation" with the board, and holding that the abridgment of speech by the WERC was justified in order "to avoid the dangers attendant upon relative chaos in labor management relations." Held :
1. The circumstances do not present such danger to labor-management relations as to justify curtailing speech in the manner ordered by the WERC. Pp. 173-176.
(a) Where it does not appear that the nonunion teacher sought to bargain or offered to enter into any bargain with the board or that he was authorized by any other teachers to enter into any agreement on their behalf, there is no basis for concluding that his terse statement during the public meeting constituted negotiation with the board. Although his views were not consistent with those of the union, communicating such views to the employer could not change the fact that the union alone was authorized to negotiate and enter into a contract with the board. Pp. 174.
(b) Moreover, since the board meeting was open to the public, the nonunion teacher addressed the board not merely as one of its employees but also as a concerned citizen, seeking to express his views on an important decision of his government. Where the board has so opened a forum for direct citizen involvement, it may not exclude teachers who make up the overwhelming proportion of school employees and are most concerned with the proceedings. Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, under the First Amendment it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech. P. 174-176.
2. The WERC's order, being designed to govern speech and conduct in the future and not merely to punish past conduct, is an improper prior restraint on teachers' expressions to the board on matters involving the operation of schools. Pp. 176-177.
69 Wis.2d 200, 231 N.W.2d 206, reversed and remanded.
Gerald Charles Kops, Madison, Wis., for appellants.
Robert C. Kelly, Madison, Wis., for appellees.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
The question presented on this appeal from the Supreme Court of Wisconsin is whether a State may constitutionally require that an elected board of education prohibit teachers, other than union representatives, to speak at open meetings, at which public participation is permitted, if such speech is addressed to the subject of pending collective-bargaining negotiations.
2
The Madison Board of Education and Madison Teachers, Inc. (MTI), a labor union, were parties to a collective-bargaining agreement during the calendar year of 1971.1 In January 1971 negotiations commenced for renewal of the agreement and MTI submitted a number of proposals. One among them called for the inclusion of a so-called "fair-share" clause, which would require all teachers, whether members of MTI or not, to pay union dues to defray the costs of collective bargaining. Wisconsin law expressly permits inclusion of "fair share" provisions in municipal employee collective-bargaining agreements. Wis.Stat. § 111.70(2) (1973). Another proposal presented by the union was a provision for binding arbitration of teacher dismissals. Both of these provisions were resisted by the school board. The negotiations deadlocked in November 1971 with a number of issues still unresolved, among them "fair share" and arbitration.
3
During the same month, two teachers, Holmquist and Reed, who were members of the bargaining unit, but not members of the union, mailed a letter to all teachers in the district expressing opposition to the "fair share" proposal.2 Two hundred teachers replied, most commenting favorably on Holmquist and Reed's position. Thereupon a petition was drafted calling for a one-year delay in the implementation of "fair share" while the proposal was more closely analyzed by an impartial committee.3 The petition was circulated to teachers in the district on December 6, 1971. Holmquist and Reed intended to present the results of their petition effort to the school board and to MTI at the school board's public meeting that same evening.
4
Because of the stalemate in the negotiations, MTI arranged to have pickets present at the school board meeting. In addition, 300 to 400 teachers attended in support of the union's position. During a portion of the meeting devoted to expression of opinion by the public, the president of MTI took the floor and spoke on the subject of the ongoing negotiations. He concluded his remarks by presenting to the board a petition signed by 1,300-1,400 teachers calling for the expeditious resolution of the negotiations. Holmquist was next given the floor, after John Matthews, the business representative of MTI, unsuccessfully attempted to dissuade him from speaking. Matthews had also spoken to a member of the school board before the meeting and requested that the board refuse to permit Holmquist to speak. Holmquist stated that he represented "an informal committee of 72 teachers in 49 schools" and that he desired to inform the board of education, as he had already informed the union, of the results of an informational survey concerning the "fair share" clause. He then read the petition which had been circulated to the teachers in the district that morning and stated that in the 31 schools from which reports had been received, 53% of the teachers had already signed the petition.
5
Holmquist stated that neither side had adequately addressed the issue of "fair share" and that teachers were confused about the meaning of the proposal. He concluded by saying: "Due to this confusion, we wish to take no stand on the proposal itself, but ask only that all alternatives be presented clearly to all teachers and more importantly to the general public to whom we are all responsible. We ask simply for communication, not confrontation." The sole response from the school board was a question by the president inquiring whether Holmquist intended to present the board with the petition. Holmquist answered that he would. Holmquist's presentation had lasted approximately 21/2 minutes.
6
Later that evening, the board met in executive session and voted a proposal acceding to all of the union's demands with the exception of "fair share." During a negotiating session the following morning, MTI accepted the proposal and a contract was signed on December 14, 1971.
7
(1)
8
In January 1972, MTI filed a complaint with the Wisconsin Employment Relations Commission (WERC) claiming that the board had committed a prohibited labor practice by permitting Holmquist to speak at the December 6 meeting. MTI claimed that in so doing the board had engaged in negotiations with a member of the bargaining unit other than the exclusive collective-bargaining representative, in violation of Wis.Stat. §§ 111.70(3)(a)1, 4 (1973).4 Following a hearing the Commission concluded that the board was guilty of the prohibited labor practice and ordered that it "immediately cease and desist from permitting employes, other than representatives of Madison Teachers Inc., to appear and speak at meetings of the Board of Education, on matters subject to collective bargaining between it and Madison Teachers Inc." The Commission's action was affirmed by the Circuit Court of Dane County.
9
The Supreme Court of Wisconsin affirmed. 69 Wis.2d 200, 231 N.W.2d 206. The court recognized that both the Federal and State Constitutions protect freedom of speech and the right to petition the government, but noted that these rights may be abridged in the face of " 'a clear and present danger that (the speech) will bring about the substantive evils that (the legislature) has a right to prevent.' " Id., at 211, 231 N.W.2d, at 212, citing Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919). The court held that abridgment of the speech in this case was justified in order "to avoid the dangers attendant upon relative chaos in labor management relations." 69 Wis.2d, at 212, 231 N.W.2d, at 213.
10
(2)
11
(1) The Wisconsin court perceived "clear and present danger" based upon its conclusion that Holmquist's speech before the school board constituted "negotiation" with the board. Permitting such "negotiation," the court reasoned, would undermine the bargaining exclusivity guaranteed the majority union under Wis.Stat. § 111.70(3)(a)4 (1973). From that premise it concluded that teachers' First Amendment rights could be limited. Assuming, arguendo, that such a "danger" might in some circumstances justify some limitation of First Amendment rights, we are unable to read this record as presenting such danger as would justify curtailing speech.
12
The Wisconsin Supreme Court's conclusion that Holmquist's terse statement during the public meeting constituted negotiation with the board was based upon its adoption of the lower court's determination that, " '(e)ven though Holmquist's statement superficially appears to be merely a "position statement," the court deems from the total circumstances that it constituted " negotiating." ' " This cryptic conclusion seems to ignore the ancient wisdom that calling a thing by a name does not make it so.5 Holmquist did not seek to bargain or offer to enter into any bargain with the board, nor does it appear that he was authorized by any other teachers to enter into any agreement on their behalf. Although his views were not consistent with those of MTI, communicating such views to the employer could not change the fact that MTI alone was authorized to negotiate and to enter into a contract with the board.
13
Moreover, the school board meeting at which Holmquist was permitted to speak was open to the public.6 He addressed the school board not merely as one of its employees but also as a concerned citizen, seeking to express his views on an important decision of his government. We have held that teachers may not be "compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work." Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). See also Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952). Where the State has opened a forum for direct citizen involvement, it is difficult to find justification for excluding teachers who make up the overwhelming proportion of school employees and who are most vitally concerned with the proceedings.7 It is conceded that any citizen could have presented precisely the same points and provided the board with the same information as did Holmquist.
14
Regardless of the extent to which true contract negotiations between a public body and its employees may be regulated an issue we need not consider at this time the participation in public discussion of public business cannot be confined to one category of interested individuals.8 To permit one side of a debatable public question to have a monopoly in expressing its views to the government is the antithesis of constitutional guarantees.9 Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech. See Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972).10
15
(3)
16
(2) The WERC's order is not limited to a determination that a prohibited labor practice had taken place in the past; it also restrains future conduct. By prohibiting the school board from "permitting employes . . . to appear and speak at meetings of the Board of Education" the order constitutes an indirect, but effective, prohibition on persons such as Holmquist from communicating with their government. The order would have a substantial impact upon virtually all communication between teachers and the school board. The order prohibits speech by teachers "on matters subject to collective bargaining."11 As the dissenting opinion below noted, however, there is virtually no subject concerning the operation of the school system that could not also be characterized as a potential subject of collective bargaining. Teachers not only constitute the overwhelming bulk of employees of the school system, but they are the very core of that system; restraining teachers' expressions to the board on matters involving the operation of the schools would seriously impair the board's ability to govern the district. The Wisconsin court's reliance on Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), for the proposition that one whose conduct falls squarely within an otherwise valid proscription may not challenge that proscription on grounds of vagueness, is inapposite. The challenged portion of the order is designed to govern speech and conduct in the future, not to punish past conduct, and as such it is the essence of prior restraint.
17
The judgment of the Wisconsin Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
18
Reversed and remanded.
19
Mr. Justice STEWART, concurring in the judgment.
20
The school board of the city of Madison, acting in accordance with state law, invited all members of the public to attend an open meeting whose agenda included discussion of the desirability of an agency-shop arrangement. The board was entirely willing to hear Holmquist, speaking simply as a member of the community, express his views on this subject. Holmquist did not seek, at the meeting or at any other time, to reach agreement or to bargain with the board. The mere expression of an opinion about a matter subject to collective bargaining, whether or not the speaker is a member of the bargaining unit, poses no genuine threat to the policy of exclusive representation that Wisconsin has adopted. I therefore agree that the order entered by the Wisconsin Employment Relations Commission unconstitutionally restricts freedom of speech.
21
Mr. Justice BRENNAN's concurring opinion reaffirms Mr. Justice Holmes' observation that "(t)he Constitution does not require all public acts to be done in town meeting or an assembly of the whole." Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372. A public body that may make decisions in private has broad authority to structure the discussion of matters that it chooses to open to the public. Such a body surely is not prohibited from limiting discussion at public meetings to those subjects that it believes will be illuminated by the views of others and in trying to best serve its informational needs while rationing its time, I should suppose a public body has broad authority to permit only selected individuals for example, those who are recognized experts on a matter under consideration to express their opinions. I write simply to emphasize that we are not called upon in this case to consider what constitutional limitations there may be upon a governmental body's authority to structure discussion at public meetings.
22
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring in the judgment.
23
By stating that "the extent to which true contract negotiations . . . may be regulated (is) an issue we need not consider at this time," ante, at 175, the Court's opinion treats as open a question the answer to which I think is abundantly clear. Wisconsin has adopted, as unquestionably the State constitutionally may adopt, a statutory policy that authorizes public bodies to accord exclusive recognition to representatives for collective bargaining chosen by the majority of an appropriate unit of employees. In that circumstance the First Amendment plainly does not prohibit Wisconsin from limiting attendance at a collective-bargaining session to school board and union bargaining representatives and denying Holmquist the right to attend and speak at the session. That proposition is implicit in the words of Mr. Justice Holmes, that the "Constitution does not require all public acts to be done in town meeting or an assembly of the whole." Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372 (1915). Certainly in the context of Wisconsin's adoption of the exclusivity principle as a matter of state policy governing relations between state bodies and unions of their employees, "(t)here must be a limit to individual argument in such matters if government is to go on." Ibid. For the First Amendment does not command "that people who want to (voice) their views have a constitutional right to do so whenever and however and wherever they please." Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 246, 17 L.Ed.2d 149 (1966). For example, this Court's "own conferences (and) the meetings of other official bodies gathered in executive session" may be closed to the public without implicating any constitutional rights whatever. Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 2658, 33 L.Ed.2d 626 (1972). Thus, the Wisconsin Supreme Court was correct in stating that there is nothing unconstitutional about legislation commanding that in closed bargaining sessions a government body may admit, hear the views of, and respond to only the designated representatives of a union selected by the majority of its employees.
24
But the First Amendment plays a crucially different role when, as here, a government body has either by its own decision or under statutory command, determined to open its decisionmaking processes to public view and participation.* In such case, the state body has created a public forum dedicated to the expression of views by the general public. "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 Dept. of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). The order sustained by the Wisconsin Supreme Court obviously contravenes that principle. Although there was a complete absence of any evidence that Holmquist's speech was part of a course of conduct in aid of an unfair labor practice by the board, the order commands that the board "shall immediately cease and desist from permitting employes, other than (union) representatives . . . to appear and speak at (board) meetings on matters subject to collective bargaining. . . . " Obedience to that order requires that the board, regardless of any other circumstances, not allow Holmquist or other citizens to speak at a meeting required by Wis.Stat. § 66.77(1) (1973), now § 19.81(1) (1976), to be open and dedicated to expressions of views by citizens generally on such subjects, even though they conform with all procedural rules, even though the subject upon which they wish to speak may be addressed by union representatives, and even though they are part of the "public" to which the forum is otherwise open. The order is therefore wholly void. The State could no more prevent Holmquist from speaking at this public forum than it could prevent him from publishing the same views in a newspaper or proclaiming them from a soapbox.
25
I therefore agree that the judgment of the Wisconsin Supreme Court be reversed.
1
MTI had been certified on June 7, 1966, as majority collective-bargaining representative of the teachers in the district by the Wisconsin Employment Relations Commission.
2
The text of the letter was as follows:
3
The text of the petition was as follows:
"December 6, 1971
"To: Madison Board of Education
"To: Madison Teachers, Incorporated
"We the undersigned ask that the fair-share proposal (agency shop) being negotiated by Madison Teachers, Incorporated and the Madison Board of Education be deferred this year. We propose the following:
"1) The fair-share concept being negotiated be thoroughly studied by an impartial committee composed of representatives from all concerned groups.
"2) The findings of this study be made public.
"3) This impartial committee will ballot (written) all persons affected by the contract agreement for their opinion on the fair-share proposal.
"4) The results of this written ballot be made public."
4
The statute provides in relevant part:
"(3) Prohibited practices and their prevention. (a) It is a prohibited practice for a municipal employer individually or in concert with others:
"1. To interfere with, restrain or coerce municipal employes in the exercise of their rights guaranteed in sub. (2).
"4. To refuse to bargain collectively with a representative of a majority of its employes in an appropriate collective bargaining unit. Such refusal shall include action by the employer to issue or seek to obtain contracts, including those provided for by statute, with individuals in the collective bargaining unit while collective bargaining, mediation or fact-finding concerning the terms and conditions of a new collective bargaining agreement is in progress, unless such individual contracts contain express language providing that the contract is subject to amendment by a subsequent collective bargaining agreement."
5
The determination of the state courts that certain conduct constituted "negotiating" under state law, standing alone, would not ordinarily be open to our review; only its use as a predicate for restraining speech opens it to review here.
6
This meeting was open to the public pursuant to a Wisconsin statute which requires certain governmental decisionmaking bodies to hold open meetings. Wis.Stat. § 66.77(1) (1973), now § 19.81(1) (1976). There are exceptions to the statute, and one of these has been interpreted to cover labor negotiations between a municipality and a labor organization. 54 Op.Atty.Gen. of Wis. vi (1965), cited with approval, Board of School Directors v. Wisconsin Employment Relations Comm'n, 42 Wis.2d 637, 653, 168 N.W.2d 92, 99-100 (1969). Thus, in contrast to the open session where the public was invited, the true bargaining sessions between the union and the board were conducted in private.
7
We need not decide whether a municipal corporation as an employer has First Amendment rights to hear the views of its citizens and employees. It is enough that Holmquist and other teachers and citizens have a protected right to communicate with the board. Since the board's ability to hear them is "inextricably meshed" with the teachers' right to speak, the board may assert those rights on behalf of Holmquist. Procunier v. Martinez, 416 U.S. 396, 409, 94 S.Ct. 1800, 1809, 40 L.Ed.2d 224 (1974).
8
Plainly, public bodies may confine their meetings to specified subject matter and may hold nonpublic sessions to transact business. See n. 6, supra.
9
The WERC order does not prohibit all speech to the board on the subject of collective bargaining. Union representatives would continue to be entitled to come before the board at its public meetings and make their views known. The impact of such a rule is underscored by the fact that the union need not rely upon public meetings to make its position known to the school board; it can also do so at closed negotiating sessions. See n. 6, supra.
10
Surely no one would question the absolute right of the nonunion teachers to consult among themselves, hold meetings, reduce their views to writing, and communicate those views to the public generally in pamphlets, letters, or expressions carried by the news media. It would strain First Amendment concepts extraordinarily to hold that dissident teachers could not communicate those views directly to the very decisionmaking body charged by law with making the choices raised by the contract renewal demands.
11
Counsel for the union conceded at oral argument that the WERC order was constitutionally overbroad, but asked the Court to narrow it simply to prohibit the board from negotiating with employees in the bargaining unit. It is not the function of this Court to undertake that task.
On the other hand, it is not the case that Holmquist was speaking "simply as a member of the community." On the contrary, as noted, p. 171, supra, Holmquist opened his remarks to the board by stating that he represented "an informal committee of 72 teachers in 49 schools." Thus, he appeared and spoke both as an employee and a citizen exercising First Amendment rights.
*
See discussion and authorities collected in Brief for the AFL-CIO as Amicus Curiae 20-24.
| 23
|
429 U.S. 181
97 S.Ct. 431
50 L.Ed.2d 389
F. David MATHEWS, Secretary of Health, Education, and Welfare, Appellant,v.Helen de CASTRO.
No. 75-1197.
Argued Nov. 8, 1976.
Decided Dec. 13, 1976.
Syllabus
The statutory classification of § 202(b)(1) of the Social Security Act whereby a married woman under 62 whose husband retires or becomes disabled is granted monthly benefits under the Act if she has a minor or other dependent child in her care, but a divorced woman under 62 whose ex-husband retires or becomes disabled does not receive such benefits, held not to violate the Due Process Clause of the Fifth Amendment. Such classification, by enabling a married woman already burdened with dependent children to meet the additional need created when her husband reaches old age or becomes disabled, comports with the Act's primary objective of providing workers and their families with basic protection against hardships created by the loss of earnings due to illness or old age; and it was not irrational for Congress, in deciding to defer monthly payments to divorced wives of retired or disabled wage earners until they reach the age of 62, to recognize the basic fact that divorced couples typically live separate lives. Pp. 185-189.
403 F.Supp. 23, reversed.
Rex E. Lee, Washington, D. C., for appellant.
Marvin A. Brusman, Chicago, Ill., for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
(1, 2) Under the Social Security Act a married woman whose husband retires or becomes disabled is granted benefits if she has a minor or other dependent child in her care. A divorced woman whose former husband retires or becomes disabled does not receive such benefits. The issue in the present case is whether this difference in the statutory treatment of married and divorced women is permissible under the Fifth Amendment to the United States Constitution.1
2
* Section 202(b)(1) of the Social Security Act, 49 Stat. 623, as added and amended, 42 U.S.C. § 402(b)(1) (1970 ed. and Supp. V), provides for the payment of "wife's insurance benefits."2 To qualify under this section a woman must be the wife or "divorced wife"3 of an individual entitled to old-age or disability benefits. Then, assuming that she meets the other statutory requirements, the woman is eligible to receive a monthly payment if she "has attained age 62 or (in the case of a wife ) has in her care (individually or jointly with (her husband)) at the time of filing such application a child entitled to a child's insurance benefit . . . ." 42 U.S.C. § 402(b)(1)(B) (emphasis supplied). As the italicized phrase indicates, a woman under 62 who has in her care an entitled child4 must currently be married to the wage earner in order to be eligible to receive benefits. A divorced woman receives monthly payments if she is 62 or over and her ex-husband retires or becomes disabled, but if she is under 62, she receives no benefits even if she has a young or disabled child in her care.5
3
The appellee, Helen de Castro, was divorced from her husband in 1968, after more than 20 years of marriage. She cares for a disabled child who is eligible for and receives child's insurance benefits under the Act. In May 1971 her former husband applied for and later was granted old-age insurance benefits. Mrs. de Castro applied for wife's insurance benefits shortly thereafter. At the time of her application she was 56 years old. Her application was denied by the Secretary of Health, Education, and Welfare because no wife's benefits are payable to a divorced wife under 62 years of age.
4
Mrs. de Castro then filed suit in the United States District Court for the Northern District of Illinois, seeking judicial review of the Secretary's decision. Her complaint alleged that § 202(b)(1)(B) of the Social Security Act "operates to arbitrarily discriminate against divorced wives," and prayed for an order directing the Secretary to pay benefits to her, a declaration that § 202(b)(1)(B) is unconstitutional, and an injunction against that section's application.
5
A three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2282. The court considered the parties' cross-motions for summary judgment and granted the relief prayed for in the complaint, holding that the wife's benefits provision "invidiously discriminates against divorced wives . . . in violation of the Fifth Amendment." de Castro v. Weinberger, 403 F.Supp. 23, 30. Central to the court's ruling was its determination that "there is no rational basis for concluding that a married wife having a dependent child in her care has a greater economic need than a divorced wife caring for such a child." Id., at 28. The Secretary appealed directly to this Court under 28 U.S.C. § 1252, and we noted probable jurisdiction. 425 U.S. 957, 96 S.Ct. 1737, 48 L.Ed.2d 202.
II
6
(3, 4) The basic principle that must govern an assessment of any constitutional challenge to a law providing for governmental payments of monetary benefits is well established. Governmental decisions to spend money to improve the general public welfare in one way and not another are "not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment." Helvering v. Davis, 301 U.S. 619, 640, 57 S.Ct. 904, 908, 81 L.Ed. 1307. In enacting legislation of this kind a government does not deny equal protection "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.' " Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491.
7
To be sure, the standard by which legislation such as this must be judged "is not a toothless one," Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 49 L.Ed.2d 651. But the challenged statute is entitled to a strong presumption of constitutionality. "So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket." Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285. It is with this principle in mind that we consider the specific constitutional issue presented by this litigation.
8
(5, 6) The old-age and disability insurance aspects of the Social Security system do not purport to be general public assistance laws that simply pay money to those who need it most. That was not the predominant purpose of these benefit provisions when they were enacted or when they were amended. Rather, the primary objective was to provide workers and their families with basic protection against hardships created by the loss of earnings due to illness or old age.6
9
The wife's insurance benefit at issue here is consistent with this overriding legislative aim: It enables a married woman already burdened with dependent children to meet the additional need created when her husband reaches old age or becomes disabled. Accordingly, the District Court's observation that many divorced women receive inadequate child-support payments, while undoubtedly true, is hardly in point. The same can be said of the District Court's statement that "there is no rational basis for concluding that a married wife having a dependent child in her care has a greater economic need than a divorced wife caring for such a child." For whatever relevance these observations might have in a case involving a constitutional attack on a statute that gave monetary benefits to women based on their general overall need, that is not this case.
10
Section 202(b)(1)(B) of the Act addresses the particular consequences for his family of a wage earner's old age or disability. Congress could rationally have decided that the resultant loss of family income, the extra expense that often attends illness and old age, and the consequent disruption in the family's economic well-being that may occur when the husband stops working justify monthly payments to a wife who together with her husband must still care for a dependent child.
11
Indeed, Congress took note of exactly these kind of factors when it amended the Social Security Act in 1958. Between 1950 and 1958 wives under retirement age with dependent children received benefits only when their husbands became entitled to old-age insurance payments. Social Security Act Amendments of 1950, § 101(a), 64 Stat. 482. Congress then amended the Act to provide the same benefits when the wage earner becomes disabled.7 Social Security Amendments of 1958, § 205(b)(1), 72 Stat. 1021. Both the House and Senate Committee reports accompanying the proposed legislation explained that the purpose of the monthly payments was to give "recognition to the problems confronting families whose bread winners" stop work. The focus was specifically on "adequate protection for (the husband's) family," and the reports mentioned the high medical expenses often associated with disability and the possibility that the wife might have to forgo work in order to care for her disabled husband. H.R.Rep. No. 2288, 85th Cong., 2d Sess., 12-13 (1958); S.Rep. No. 2388, 85th Cong., 2d Sess., 10-11 (1958), U.S.Code Cong. & Admin.News 1958, p. 4218.
12
In view of the legislative purpose, it is hardly surprising that the congressional judgment evidently was a different one with respect to divorced women. Divorce by its nature works a drastic change in the economic and personal relationship between a husband and wife. Ordinarily it means that they will go their separate ways. Congress could have rationally assumed that divorced husbands and wives depend less on each other for financial and other support than do couples who stay married. The problems that a divorced wife may encounter when her former husband becomes old or disabled may well differ in kind and degree from those that a woman married to a retired or disabled husband must face. For instance, a divorced wife need not forgo work in order to stay at home to care for her disabled husband. She may not feel the pinch of the extra expenses accompanying her former husband's old age or disability. In short, divorced couples typically live separate lives. It was not irrational for Congress to recognize this basic fact in deciding to defer monthly payments to divorced wives of retired or disabled wage earners until they reach the age of 62.
13
This is not to say that a husband's old age or disability may never affect his divorced wife. Many women receive alimony or child support after divorce that their former husbands might not be able to pay when they stop work. But even for this group which does not include the appellee in the present case Congress was not constitutionally obligated to use the Social Security Act to subsidize support payments. It could rationally decide that the problems created for divorced women remained less pressing than those faced by women who continue to live with their husbands.
14
In any event, the constitutional question "is not whether a statutory provision precisely filters out those, and only those, who are in the factual position which generated the congressional concern reflected in the statute." Weinberger v. Salfi, 422 U.S. 749, 777, 95 S.Ct. 2457, 2472, 45 L.Ed.2d 522. We conclude, accordingly, that the statutory classifications involved in this case are not of such an order as to infringe upon the Due Process Clause of the Fifth Amendment.
15
The judgment is reversed.
16
It is so ordered.
17
Mr. Justice MARSHALL concurs in the judgment.
1
It is well settled that the Fifth Amendment's Due Process Clause encompasses equal protection principles. See, e. g., Weinberger v. Salfi, 422 U.S. 749, 768-770, 95 S.Ct. 2457, 2468-2469, 45 L.Ed.2d 522.
2
Title 42 U.S.C. § 402(b)(1) (1970 ed. and Supp.) provides in full:
"(b) Wife's insurance benefits.
"(1) The wife (as defined in section 416(b) of this title) and every divorced wife (as defined in section 416(d) of this title) of an individual entitled to old-age or disability insurance benefits, if such wife or such divorced wife
"(A) has filed application for wife's insurance benefits,
"(B) has attained age 62 or (in the case of a wife) has in her care (individually or jointly with such individual) at the time of filing such application a child entitled to a child's insurance benefit on the basis of the wages and self-employment income of such individual,
"(C) in the case of a divorced wife, is not married, and
"(D) is not entitled to old-age or disability insurance benefits, or is entitled to old-age or disability insurance benefits based on a primary insurance amount which is less than one-half of the primary insurance amount of such individual,
"shall (subject to subsection (s) of this section) be entitled to a wife's insurance benefit for each month, beginning with the first month in which she becomes so entitled to such insurance benefits and ending with the month preceding the first month in which any of the following occurs
"(E) she dies,
"(F) such individual dies,
"(G) in the case of a wife, they are divorced and either (i) she has not attained age 62, or (ii) she has attained age 62 but has not been married to such individual for a period of 20 years immediately before the date the divorce became effective,
"(H) in the case of a divorced wife, she marries a person other than such individual,
"(I) in the case of a wife who has not attained age 62, no child of such individual is entitled to a child's insurance benefit,
"(J) she becomes entitled to an old-age or disability insurance benefit based on a primary insurance amount which is equal to or exceeds one-half of the primary insurance amount of such individual, or
"(K) such individual is not entitled to disability insurance benefits and is not entitled to old-age insurance benefits."
3
The Act defines "divorced wife" as "a woman divorced from an individual, but only if she had been married to such individual for a period of 20 years immediately before the date the divorce became effective." 42 U.S.C. § 416(d)(1). The term "divorce" refers to a divorce a vinculo matrimonii. § 416(d)(4).
4
The conditions upon which a child is entitled to receive "child's insurance benefits" are set out in § 202(d) of the Act, 42 U.S.C. § 402(d) (1970 ed. and Supp. V). Generally, the child must be dependent on the wage earner and either under 18 years old (or a full-time student under 22 years old) or under a disability.
5
The Act also provides for the payment of "widow's insurance benefits" and "mother's insurance benefits." 42 U.S.C. §§ 402(e), (g) (1970 ed. and Supp. V). Divorced and married women, with or without dependent children, are eligible to receive monthly payments under these sections in certain circumstances not pertinent here.
6
The old-age and disability insurance programs are distinct from the provisions for public assistance to the aged and disabled also contained in the Social Security Act. 42 U.S.C. §§ 301-306, 1351-1355, partially repealed by Pub.L. No. 92-603, §§ 303(a), (b), 86 Stat. 1484; 42 U.S.C. §§ 1381-1383c (1970 ed., Supp. V). The insurance programs are contributory in nature and are designed to prevent public dependency by protecting workers and their families against common economic hazards. Congress in 1935 contemplated that the old-age insurance benefits would be "payable wholly regardless of the need of the recipient." H.R.Rep. No. 615, 74th Cong., 1st Sess., 1 (1935). The public-assistance-for-the-aged program, on the other hand, was designed "to provide for old people who are dependent upon the public for support . . .," id., at 4, and the statute specifically referred to "aged needy individuals." Social Security Act, § 1, 49 Stat. 620. See also H.R.Rep. No. 615, supra, at 3-6; S.Rep. No. 628, 74th Cong., 1st Sess., 4-7 (1935); Message of the President Recommending Legislation on Economic Security, H.R.Doc. No. 81, 74th Cong., 1st Sess., 20-28 (1935).
In 1950 the Act was amended to provide for grants-in-aid to the States so that assistance could be furnished "to needy individuals eighteen years of age or older who are permanently and totally disabled." Social Security Act Amendments of 1950, § 351, 64 Stat. 555. In 1956 Congress created a program for disability insurance benefits. Social Security Amendments of 1956, § 103(a), 70 Stat. 815. Again, the insurance program, unlike the public assistance provisions, was not need based, but instead was designed to protect against the specific economic hardships created by involuntary, premature retirement. See H.R.Rep. No. 1300, 81st Cong., 1st Sess., 27-28, 53-54 (1949); Recommendations for Social Security Legislation, Reports of the Advisory Council on Social Security, S.Doc. No. 208, 80th Cong., 2d Sess., 69-70, 95-97 (1949); S.Rep. No. 2133, 84th Cong., 2d Sess., 3-4 (1956); H.R.Rep. No. 1189, 84th Cong., 1st Sess., 3-6 (1955), U.S.Code Cong. & Admin.News 1956, p. 3877.
7
"Wife's insurance benefits" first became part of the Social Security Act in 1939. Amendments enacted that year provided for monthly payments to wives 65 years or older whose husbands were entitled to old-age benefits. Social Security Act Amendments of 1939, § 201, 53 Stat. 1362. In 1950 Congress dropped the age requirement for women with retired husbands and entitled children in their care. Social Security Act Amendments of 1950, § 101(a), 64 Stat. 482. In 1958 Congress extended similar benefits to wives of any age who had entitled children and disabled husbands. Social Security Amendments of 1958, § 205(b)(1), 72 Stat. 1021. While the legislative history of the 1950 amendments is sparse, the congressional purpose presumably was to recognize a family need created when the husband reaches old age and stops working. Certainly the sole purpose could not have been to allow the wife to remain at home to take care of the child, as the appellee suggests, because the presence of the retired husband at home ordinarily would ensure parental supervision. Similarly, when Congress provided benefits in 1958 to wives with disabled husbands, it had purposes beyond the mere encouragement of the wife to stay home and take care of the children. See H.R.Rep. No. 2288, 85th Cong., 2d Sess., 12-13 (1958); S.Rep. No. 2388, 85th Cong., 2d Sess., 10-11 (1958), U.S.Code Cong. & Admin.News 1958, p. 4218.
| 12
|
429 U.S. 229
97 S.Ct. 441
50 L.Ed.2d 427
INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, LOCAL 790, Petitioner,v.ROBBINS & MYERS, INC., et al. Dortha Allen GUY, Petitioner, v. ROBBINS & MYERS, INC., et al.
Nos. 75-1264, 75-1276.
Argued Nov. 9, 1976.
Decided Dec. 20, 1976.
Syllabus
Two days after her discharge by respondent company, petitioner Guy, a Negro, caused a grievance alleging "unfair action" to be filed on her behalf pursuant to procedures in a collective-bargaining agreement between her union and respondent. On February 10, 1972, 84 days after the company under those procedures had denied the grievance, but 108 days after the discharge, petitioner Guy filed a charge of racial discrimination relating to her discharge with the Equal Employment Opportunity Commission (EEOC), which in November 1973 concluded that race had not figured in the discharge. Petitioner Guy then brought this suit under Title VII of the Civil Rights Act of 1964 in the District Court, which thereafter dismissed the suit on the ground that Guy had not filed her charge with the EEOC within 90 days "after the alleged unlawful practice occurred," as required by § 706(d) (a period later extended to 180 days when, effective March 24, 1972, the Equal Employment Opportunity Act of 1972 amended the limitations provision), and that Guy's resort to the contractual grievance procedure did not extend the time in which to file the Title VII charge. Section 14 of the 1972 amendments provides that the amendments "shall be applicable with respect to charges pending with the Commission on the date of the enactment of this Act and all charges filed thereafter." The Court of Appeals, which affirmed, also concluded that the extension of 180 days could not "revive" a claim that was "barred and extinguished" before the extension's effective date. Held:
1. Petitioners' contention, raised explicitly for the first time in this Court, that the date of the conclusion of the grievance procedures, not the date of the discharge, was the "final" date of "the alleged unlawful practice," is without merit as being contrary to the understanding of the parties themselves in the courts below. Pp. 234-235.
2. The existence and utilization of grievance procedures does not toll the running of the limitations period that would otherwise begin on the date of the firing, Title VII remedies being independent of other pre-existing remedies available to an aggrieved employee. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147; Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295. Pp. 236-240.
(a) Petitioner Guy, by pursuing the grievance procedures, was asserting an independent claim based on a contract right and was in no way thereby prevented from filing her charge with the EEOC within 90 days of her discharge. Application of equitable principles to toll the 90-day period pending completion of the grievance procedures is therefore inappropriate here. Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941, distinguished. Pp. 237-238.
(b) Congress clearly intended to retain other remedies "against private employment discrimination separate from and independent of the more elaborate and time-consuming procedures of Title VII," Johnson v. Railway Express Co., supra, 421 U.S. at 465-466, 95 S.Ct. at 1722-1723. Pp. 239-240.
3. The 1972 amendments and their legislative history demonstrate that Congress intended to apply the 180-day period to a charge such as that filed by Guy where the charge was filed with the EEOC before these amendments became effective, was still pending when the amendments became effective, and alleged a discriminatory occurrence within 180 days of the enactment of the amendment. Pp. 241-243.
4. Lifting the bar of a statute of limitations so as to restore a remedy lost through mere lapse of time is not per se unconstitutional. Cf. Chase Securities Corp. v. Donaldson, 325 U.S. 304, 311-312, 65 S.Ct. 1137, 1141, 89 L.Ed. 1628. Pp. 243-244.
6 Cir., 525 F.2d 124, reversed and remanded.
Winn Newman, Washington, D. C., for petitioners.
Fletcher L. Hudson, Memphis, Tenn., for respondents pro hac vice, by special leave of Court.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioners seek review of a decision of the Court of Appeals for the Sixth Circuit holding that a claim brought by petitioner Dortha Guy under Title VII of the Civil Rights Act of 1964 was barred by her failure to file a charge with the Equal Employment Opportunity Commission (EEOC) within the statutory limitations period. They present three contentions: The existence and utilization of grievance procedures postpone the date on which an allegedly discriminatory firing took place; the existence and utilization of grievance procedures toll the running of the limitations period which would otherwise begin on the date of the firing; and the 1972 amendments to Title VII, Equal Employment Opportunity Act of 1972, 86 Stat. 103 (Mar. 24, 1972), extending the limitations period from 90 to 180 days, apply to the charge in this case.
2
* Respondent Robbins & Myers, Inc. (hereinafter respondent), terminated the employment of petitioner Guy on October 25, 1971, and assigned as its reason for doing so her failure to comply with procedures contained in the collective-bargaining agreement pertaining to leaves of absence. Two days later petitioner caused a grievance alleging an "unfair action" of the company in firing her to be filed on her behalf in accordance with the provisions of the collective-bargaining agreement then in force between petitioner Local 790 of the International Union of Electrical, Radio and Machine Workers (Local 790) and respondent. That agreement's dispute-resolution procedure, which is to be commenced within "five (5) working days of the commission of the act originating the grievance," consists of three grievance steps followed by one arbitration step. Guy's grievance was processed through the third step of the grievance procedure where it was denied on November 18, 1971, with the finding that her termination had been in accordance with the provisions of the collective-bargaining agreement.
3
On February 10, 1972, a date 84 days after the denial of her grievance at the third stage, but 108 days after the date of her discharge, Guy, who is black, filed a charge of racial discrimination with the EEOC directed against both respondent and Local 790. The EEOC in November 1973, issued its determination and "right to sue" letter, finding that there was "no reason to believe that race was a factor in the decision to discharge" Guy. Her suit in the United States District Court for the Western District of Tennessee under 42 U.S.C. § 2000e-5, was met by a motion to dismiss on the ground, inter alia, that it was barred because of her failure to file a charge with the EEOC within 90 days of her discharge, § 706(d), 42 U.S.C. § 2000e-5(d).1 The District Court dismissed her action,2 and the Court of Appeals affirmed that judgment by a divided vote, 6 Cir., 525 F.2d 124 (1975). That court felt that it would be "utterly inconsistent" with our opinions in Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) and in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), to hold that the pursuit of a contractual grievance procedure operates to toll a Title VII remedy "which the employee has a right to resort to concurrently." 525 F.2d at 126. Then, noting the question of the applicability of the 1972 amendments to Title VII raised by the EEOC as amicus curiae (also noting without more that "(s)ince this issue was not raised in the District Court by any party to the case, we are not required to consider it"), the Court of Appeals stated:
4
"Plaintiff Guy's claim was barred on January 24, 1972. She did not file her charge with EEOC until February 10, 1972. The amendments to Title VII, increasing the time within which to file her charge to 180 days, did not become effective until March 24, 1972. 42 U.S.C. § 2000e-5(e) (1970 ed., Supp. V). The subsequent increase of time to file the charge enacted by Congress could not revive plaintiff's claim which had been previously barred and extinguished." 525 F.2d, at 128.
5
The dissenting judge disagreed on this point, believing that the case should be remanded for consideration of the effect of the 1972 amendments.
6
We granted certiorari, 425 U.S. 950, 96 S.Ct. 1723, 48 L.Ed.2d 193, to resolve an apparent Circuit conflict on two of these issues: tolling during the pendency of a collective-bargaining-contract's grievance mechanism,3 and the applicability of the 1972 amendments to charges filed more than 90 days from the date of the alleged discriminatory act but less than 180 days before the time the amendments became effective.
II
7
Before reaching either of those questions, however, petitioners Guy and Local 790 assert that the complaint with the EEOC was timely filed, not because of any tolling concept, but simply because the date "the alleged unlawful employment practice occurred" is the date of the conclusion of the collective-bargaining agreement's grievance-arbitration procedures. Until that time, we are told, the October 25 discharge of Guy (although itself an "occurrence" allowing immediate resort to the EEOC) was "tentative" and "non-final," and remained so until she terminated the grievance and arbitration process, at which time the "final" occurrence transpired.4 As a consequence, according to petitioners, the unfavorable termination of the grievance procedures, making the discharge "final," constituted an "occurrence" enabling Guy to start the 90-day period running from that date.
8
While the parties could conceivably have agreed to a contract under which management's ultimate adoption of a supervisor's recommendation would be deemed the relevant statutory "occurrence," this was not such a contract. For all that appears Guy was fired as of October 25, 1971, and all parties so understood. She stopped work and ceased receiving pay and benefits as of that date. Unless the grievance procedures resulted in her reinstatement, she would not be entitled to be paid for the period during which the grievance procedures were being implemented.5 The grievance lodged on October 27, 1971, protests the "unfair action of Co. for discharge" (emphasis added), while the complaint filed in the District Court alleges Guy's disagreement, after learning of her discharge, "with the Company's determination that she had 'voluntarily quit,' " (emphasis added). Throughout the proceedings both in the District Court and in the Court of Appeals, both sides appear to have assumed, as did the courts, that the date of discharge was October 25, 1971. There being no indication that either party viewed the October 25 discharge as anything other than "final,"6 there is certainly no reason for us to now torture this mutual understanding by accepting the bare assertions to the contrary raised by petitioners for the first time before this Court.7
III
9
We think that petitioners' arguments for tolling the statutory period for filing a claim with the EEOC during the pendency of grievance or arbitration procedures under the collective-bargaining contract are virtually foreclosed by our decisions in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), and in Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). In Alexander we held that an arbitrator's decision pursuant to provisions in a collective-bargaining contract was not binding on an individual seeking to pursue his Title VII remedies in court. We reasoned that the contractual rights under a collective-bargaining agreement and the statutory right provided by Congress under Title VII "have legally independent origins and are equally available to the aggrieved employee," 415 U.S., at 52, 94 S.Ct. at 1022,8 and for that reason we concluded:
10
"(I)n instituting an action under Title VII, the employee is not seeking review of the arbitrator's decision. Rather, he is asserting a statutory right independent of the arbitration process." Id., at 54, 94 S.Ct. at 1022.
11
One Term later, we reaffirmed the independence of Title VII remedies from other pre-existing remedies available to an aggrieved employee. In Johnson v. Railway Express Agency, we held that the timely filing of a charge with the EEOC pursuant to § 706 of Title VII did not toll the running of the statute of limitations applicable to an action, based on the same facts, brought under 42 U.S.C. § 1981. In reaffirming the independence of Title VII remedies from other remedies, we noted that such independence might occasionally be a two-edged sword,9 but "in the face of congressional emphasis upon the existence and independence of the two remedies," we were disinclined "to infer any positive preference for one over the other, without a more definite expression in the legislation Congress has enacted," 421 U.S., at 461, 95 S.Ct. at 1720.
12
Petitioners insist that notwithstanding these decisions, equitable tolling principles should be applied to this litigation, and that the application of such principles would toll the 90-day period pending completion of the grievance procedures. This is so, they say, because here the "policy of repose, designed to protect defendants." Burnett v. New York Central R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1055, 13 L.Ed.2d 941 (1965), is "outweighed (because) the interests of justice require vindication of the plaintiff's rights."
13
But this is quite a different situation from Burnett, supra.10 There the plaintiff in a Federal Employers' Liability Act action had asserted his FELA claim in the state courts, which had concurrent jurisdiction with the federal courts, but he had the misfortune of filing his complaint in an Ohio State court where venue did not lie under Ohio law. This Court held that such a filing was sufficient to toll the statutory limitations period, even though the state-court action was dismissed for improper venue and a new complaint ultimately filed in the United States District Court. The Court said:
14
"Petitioner here did not sleep on his rights but brought an action within the statutory period in the state court of competent jurisdiction. Service of process was made upon the respondent notifying him that petitioner was asserting his cause of action." Id., at 429, 85 S.Ct. at 1055.
15
Here petitioner Guy in the grievance proceedings was not asserting the same statutory claim in a different forum, nor giving notice to respondent of that statutory claim, but was asserting an independent claim based on a contract right, Alexander v. Gardner-Denver Co., supra, 415 U.S. at 53-54, 56-58, 94 S.Ct. at 1022. Burnett cannot aid this petitioner, see Johnson v. Railway Express Agency, supra, 421 U.S. at 467, and n. 14, 95 S.Ct. at 1724.11
16
Petitioners advance as a corollary argument for tolling the premise that substantial policy considerations, based on the central role of arbitration in labor-management relations, see Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), also dictate a finding that the Title VII limitations period is tolled in this situation. Similar arguments by the employer in Alexander v. Gardner-Denver Co., urging the superiority and pre-eminence of the arbitration process were rejected by us in that case, and we find the reasoning of that case controlling in rejecting this claim made by petitioners.
17
Petitioners also advance a related argument that the danger of possible conflict between the concurrent pursuit of both collective-bargaining and Title VII remedies should result in tolling the limitations period for the latter while the former proceeds to conclusion. Similar arguments to these, albeit relating to 42 U.S.C. § 1981 and not to private labor agreements, were, however, raised and rejected in Johnson. We think the language we used in that case is sufficient to dispose of this claim:
18
"(I)t is conceivable, and perhaps almost to be expected, that failure to toll will have the effect of pressing a civil rights complainant who values his § 1981 claim into court before the EEOC has completed its administrative proceeding. One answer to this, although perhaps not a highly satisfactory one, is that the plaintiff in his § 1981 suit may ask the court to stay proceedings until the administrative efforts at conciliation and voluntary compliance have been completed. But the fundamental answer to petitioner's argument lies in the fact presumably a happy one for the civil rights claimant that Congress clearly has retained § 1981 as a remedy against private employment discrimination separate from and independent of the more elaborate and time consuming procedures of Title VII." 421 U.S., at 465-466, 95 S.Ct. at 1722.
19
Petitioners contend at some length that tolling would impose almost no costs, as the delays occasioned by the grievance-arbitration process would be "slight,"12 noting that the maximum delay in invoking the three-stage grievance procedure (although not including the arbitration step) under the collective-bargaining agreement in force in this case would be 35 days. But the principal answer to this contention is that Congress has already spoken with respect to what it considers acceptable delay when it established a 90-day limitations period, and gave no indication that it considered a "slight" delay followed by 90 days equally acceptable. In defining Title VII's jurisdictional prerequisites "with precision," Alexander v. Gardner-Denver Co., 415 U.S., at 47, 94 S.Ct., at 1019, Congress did not leave to courts the decision as to which delays might or might not be "slight."13
20
Congress did provide in § 706(b) one exception for this 90-day limitations period, when it provided that the limitations period should run for a maximum additional 120 days when there existed "a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof." Where Congress has spoken with respect to a claim much more closely related to the Title VII claim than is the contractual claim pursued under the grievance procedure, and then firmly limited the maximum possible extension of the limitations period applicable thereto, we think that all of petitioners' arguments taken together simply do not carry sufficient weight to overcome the negative implication from the language used by Congress, cf. Johnson v. Railway Express Agency, 421 U.S., at 461, 95 S.Ct., at 1720.14
IV
21
Guy filed her charge with the EEOC on February 10, 1972, 108 days after her October 25, 1971, discharge. On March 24, 1972, the Equal Employment Opportunity Act of 1972, 86 Stat. 103, extended to 180 days the time within which to file a claim with the EEOC, § 706(e). Petitioners contend that this expanded limitations period should apply to Guy's charge as the occurrence she was complaining of took place within 180 days of the enactment of the 1972 amendments. We agree.
22
Section 14 of the Equal Employment Opportunity Act of 1972, 86 Stat. 113, states:
23
"The amendments made by this Act to section 706 of the Civil Rights Act of 1964 shall be applicable with respect to charges pending with the Commission on the date of enactment of this Act and all charges filed thereafter."
24
Respondent asserts that § 14, which was added by amendment to the bill on the floor of the House by Senator Javits, 118 Cong.Rec. 4816 (1972), was designed for the sole purpose of having the new enforcement powers given to the EEOC apply to pending charges, see letter of Feb. 14, 1972, from David L. Norman, Assistant Attorney General, Civil Rights Division of the Department of Justice, to Senator Dominick, quoted in EEOC v. Christiansburg Garment Co., 376 F.Supp. 1067, 1074 (W.D. Va.1974). However, the explicit statutory language used applies to all amendments made by the Act to § 706, not simply to the new enforcement provisions. As Senator Javits did not limit his remarks on the floor so as to indicate that § 14's retroactivity was designed to apply only to the new enforcement provisions,15 the legislative history does not make this one of those unusual cases in which a court may infer, contrary to the language actually used, that Congress intended to so limit the scope of § 14, cf. also S.Rep.No.91-1137, p. 31 (1970).
25
Respondent also contends that the amendment is not applicable to the charge filed by Guy with the EEOC, since, being untimely when filed, her charge could not have been "pending with the Commission on the date of enactment of this Act." This reading of "pending" confining it to charges still before the Commission and timely when filed is not the only possible meaning of the word, is largely rebutted by the legislative history,16 and renders the language of § 14 virtually meaningless insofar as the enlarged limitations period is concerned. Since Congress also applied the enlarged limitations period to charges, whether or not untimely on March 24, "filed thereafter," we should not presume Congress created this odd hiatus in retroactivity suggested by respondent unless congressional intent to do so was conveyed by language more precise than "pending," cf. Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). "Pending" is simply not a term of art that unambiguously carries with it a meaning precisely suited for this situation; equally logical, for example, would be an interpretation that read "pending" to mean "filed and not yet rejected," cf. Legis.Hist., supra, n. 16, at 1851. We hold that Congress intended the 180-day period to be applicable to charges such as that filed by Guy, where the charge was filed with the EEOC prior to March 24, 1972, and alleged a discriminatory occurrence within 180 days of the enactment of the Act.17
26
Respondent contends, finally, that Congress was without constitutional power to revive, by enactment, an action which, when filed, is already barred by the running of a limitations period. This contention rests on an unwarrantedly broad reading of our opinion in William Danzer Co. v. Gulf & Ship Island R. Co., 268 U.S. 633, 45 S.Ct. 612, 69 L.Ed. 1126 (1925). Danzer was given a narrow reading in the later case of Chase Securities Corp. v. Donaldson, 325 U.S. 304, 312, n. 8, 65 S.Ct. 1137, 1141, 89 L.Ed. 1628 (1945). The latter case states the applicable constitutional test in this language:
27
"The Fourteenth Amendment does not make an act of state legislation void merely because it has some retrospective operation. What it does forbid is taking of life, liberty or property without due process of law. . . . Assuming that statutes of limitation, like other types of legislation, could be so manipulated that their retroactive effects would offend the Constitution, certainly it cannot be said that lifting the bar of a statute of limitation so as to restore a remedy lost through mere lapse of time is per se an offense against the Fourteenth Amendment." Id., at 315-316, 65 S.Ct., at 1143.
28
Applying that test to this litigation, we think that Congress might constitutionally provide for retroactive application of the extended limitations period which it enacted.
29
We thus resolve against petitioners their first two contentions, but resolve the third in their favor. The judgment of the Court of Appeals for the Sixth Circuit is therefore reversed, and the cases are remanded for further proceedings consistent with this opinion.
30
Reversed and remanded.
31
Mr. Justice BRENNAN, Mr. Justice STEWART, Mr. Justice MARSHALL, and Mr. Justice STEVENS agree that the expanded 180-day limitations period enacted by 86 Stat. 103 applied to Guy's charge and would reverse the Court of Appeals on that ground without addressing the questions discussed in Parts II and III of the Court's opinion.
1
At the time of her discharge, and at the time the charge was filed with the EEOC, § 706(d) stated, in pertinent part: "A charge under subsection (a) (of this section) shall be filed within ninety days after the alleged unlawful employment practice occurred . . . ." Section 706(d) was renumbered as § 706(e), 42 U.S.C. § 2000e-5(e) (1970 ed., Supp. V), as a result of the 1972 amendments to the Act. Whenever § 706(d) is cited in this opinion, it refers to the pre-1972 version of what is now § 706(e).
2
Guy also alleged a cause of action under 42 U.S.C. § 1981. By order dated May 30, 1974, the District Court dismissed this cause of action because of a failure to meet the applicable Tennessee statute of limitations. No appeal was taken from this decision.
3
The question of the tolling of Title VII's limitations period during the pendency of grievance proceedings was noted in our opinion in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 277-278, 96 S.Ct. 2574, 2576-2578, 49 L.Ed.2d 493 (1976), but had not been decided in the lower courts, and was not presented for us to decide.
4
This assertion, which is also adopted by the EEOC as amicus curiae, is premised on the proposition that "(u)se of the grievance resolution process is not an 'appeal' of a 'final' decision, but is a method of obtaining the judgment of higher management on whether the employee should be retained," Brief for United States as Amicus Curiae 21; Brief for Petitioner Local 790 pp. 17-18.
5
Tr. of Oral Arg., at 14. Nor is there any indication that, should the grievance mechanism not be utilized, any sort of "formalized" final determination by management was required before Guy's discharge would have been considered final. As the EEOC acknowledges, "the employer's foremen usually can fire an individual employee such as Guy," Brief for United States as Amicus Curiae 19.
6
Even while raising the contrary arguments in their briefs before this Court, petitioners place the October 25 discharge as the action of respondent. See, e. g., Brief for Petitioner Local 790 p. 4 ("The following day (October 25, 1971) the Company discharged her on the ground that she had not complied with procedures embodied in the collective bargaining agreement pertaining to return from leaves of absence"); Brief for Petitioner Guy 5 ("The Company discharged Guy on October 25 for having 'voluntarily quit' ").
7
At oral argument, we were told that while this assertion was not articulated as a separate argument before the Court of Appeals, pertinent language in Moore v. Sunbeam Corp., 459 F.2d 811 (C.A.7 1972), was cited to that court, Tr. of Oral Arg. 11-12. This is hardly a precise way to get an issue before a Court of Appeals, and there is no indication that the Court of Appeals recognized any such implicit contention, assuming, arguendo, that petitioners thought they were raising it.
8
See also 415 U.S., at 48-49, 94 S.Ct., at 1020: "Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination." We felt that the legislative history was quite clear in this respect, see, e. g., 110 Cong.Rec. 7205, 13650-13652 (1964); H.R. 9247, 92d Cong., 1st Sess. (1971); H.R.Rep.No.92-238 (1971); S.Rep.No.92-415, p. 24 (1971).
9
"Conciliation and persuasion through the administrative process (e. g., Title VII), to be sure, often constitute a desirable approach to settlement of disputes based on sensitive and emotional charges of invidious employment discrimination. We recognize, too, that the filing of a lawsuit might tend to deter efforts at conciliation, that lack of success in the legal action could weaken the Commission's efforts to induce voluntary compliance, and that a suit is privately oriented and narrow, rather than broad, in application, as successful conciliation tends to be. But these are the natural effects of the choice Congress has made available to the claimant by its conferring upon him independent administrative and judicial remedies. The choice is a valuable one," 421 U.S., at 461, 95 S.Ct., at 1720.
10
In no way is this a situation in which a party has "been prevented from asserting" his or her rights, Burnett v. New York Central R. Co., 380 U.S., at 429, 85 S.Ct., at 1055. There is no assertion that Guy was "prevented" from filing a charge with the EEOC within 90 days of October 25, 1971; indeed, it is conceded and even urged that she could have filed it the following day, had she so wished.
11
We concluded in Johnson that "(o)nly where there is complete identity of the causes of action will the protections suggested by petitioner necessarily exist and will the courts have an opportunity to assess the influence of the policy of repose inherent in a limitations period," 421 U.S., at 468 n. 14, 95 S.Ct., at 1724. See n. 14, infra.
12
Petitioners contend that the vast majority of collective-bargaining agreements have stringent time restrictions on the resolution of disputes through the grievance stages, see, e. g., Brief for Petitioner Local 790, pp. 38-39; see also Brief for United States as Amicus Curiae 23 n. 13.
13
Even taken on its own ground, this argument is not unambiguously favorable to petitioners. If the collective-bargaining dispute-settlement procedures are as speedy as suggested, no real need for tolling has been shown. In the instant case, for example, at the conclusion of stage three of the grievance procedure, Guy still had 66 days in which to file a charge with the EEOC, and no reason has been advanced as to why this was not ample time.
14
Adherence to the limitations period assures prompt notification to the employer of a charge of an alleged violation of Title VII, see § 706(b). The grievance process assures no such comparable notice. In the instant case, the grievance alleged only an "unfair action." Even if racial discrimination is explicitly discussed, however, the grievance procedure properly involves only contractual questions, and would but fortuitously implicate the Title VII standards, Alexander v. Gardner-Denver Co., 415 U.S., at 53-54, 56-58, 94 S.Ct., at 1022; see also Johnson v. Railway Express Agency, 421 U.S., at 467-468, n. 14, 95 S.Ct., at 1724. Petitioners' arguments respecting the policies behind private resolution of labor disputes through collective bargaining, moreover, apply equally to the arbitration stage as they do to the grievance stage, cf. Emporium Capwell Co. v. Community Org., 420 U.S. 50, 66-67, 95 S.Ct. 977, 987, 43 L.Ed.2d 12 (1975); Alexander v. Gardner-Denver Co., supra, 415 U.S., at 56, 59-60, 94 S.Ct., at 1025; Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). Yet, at the arbitration stage the assurance of but a "slight" delay is lacking.
15
Indeed, the comment of Senator Javits implied precisely the opposite:
"MR. JAVITS. Mr. President, this amendment would make whatever we do enact into law applicable to pending cases. The Department of Justice has requested it in a letter to the minority leader; that is my reason for offering it." 118 Cong.Rec. 4816 (1972).
16
Section 14 was stated to be designed to cover "charges filed with the Commission prior to the effective date of the Act," Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., Legislative History of Equal Employment Act of 1972, p. 1851 (Comm.Print 1972); see also id., at 1777.
17
Accordingly, we need not decide whether the enlarged limitations period also redounds to the benefit of persons who filed a charge more than 90, but less than 180, days from the date of the alleged "occurrence," where the 180 days had run prior to March 24, 1972.
| 12
|
429 U.S. 190
97 S.Ct. 451
50 L.Ed.2d 397
Curtis CRAIG et al., Appellants,v.David BOREN, etc., et al.
No. 75-628.
Argued Oct. 5, 1976.
Decided Dec. 20, 1976.
Rehearing Denied Feb. 22, 1977. See 429 U.S. 1124, 97 S.Ct. 1161.
Syllabus
Appellant Craig, a male then between 18 and 21 years old, and appellant Whitener, a licensed vendor of 3.2% beer, brought this action for declaratory and injunctive relief, claiming that an Oklahoma statutory scheme prohibiting the sale of "nonintoxicating" 3.2% beer to males under the age of 21 and to females under the age of 18 constituted a gender-based discrimination that denied to males 18-20 years of age the equal protection of the laws. Recognizing that Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225, and later cases establish that classification by gender must substantially further important governmental objectives, a three-judge District Court held that appellees' statistical evidence regarding young males' drunk-driving arrests and traffic injuries demonstrated that the gender-based discrimination was substantially related to the achievement of traffic safety on Oklahoma roads. Held :
1. Since only declaratory and injunctive relief against enforcement of the gender-based differential was sought, the controversy has been mooted as to Craig, who became 21 after this Court had noted probable jurisdiction. See, e. g., DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164. P. 192.
2. Whitener has standing to make the equal protection challenge. Pp. 192-197.
(a) No prudential objective thought to be served by limitations of jus tertii standing can be furthered here, where the lower court already has entertained the constitutional challenge and the parties have sought resolution of the constitutional issue. Pp. 193-194.
(b) Whitener in any event independently has established third-party standing. She suffers "injury in fact" since the challenged statutory provisions are addressed to vendors like her, who either must obey the statutory provisions and incur economic injury or disobey the statute and suffer sanctions. In such circumstances, vendors may resist efforts to restrict their operations by advocating the rights of third parties seeking access to their market. See, e. g., Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349. Pp. 194-197.
3. Oklahoma's gender-based differential constitutes an invidious discrimination against males 18-20 years of age in violation of the Equal Protection Clause. Appellees' statistics (the most relevant of which show only that .18% of females and 2% of males in the 18-20-year-old age group were arrested for driving while under the influence of liquor) do not warrant the conclusion that sex represents an accurate proxy for the regulation of drinking and driving. Pp. 199-204.
4. The operation of the Twenty-first Amendment does not alter the application of equal protection standards that otherwise govern this case. The Court has never recognized that application of that Amendment can defeat an otherwise established claim under the Equal Protection Clause, the principles of which cannot be rendered inapplicable here by reliance upon statistically measured but loose-fitting generalities concerning the drinking tendencies of aggregate groups. Pp. 204-210.
399 F.Supp. 1304, reversed.
Frederick P. Gilbert, Tulsa, Okl., for appellants.
James H. Gray, Oklahoma City, Okl., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The interaction of two sections of an Oklahoma statute, Okla.Stat., Tit. 37, §§ 241 and 245 (1958 and Supp.1976),1 prohibits the sale of "nonintoxicating" 3.2% beer to males under the age of 21 and to females under the age of 18. The question to be decided is whether such a gender-based differential constitutes a denial to males 18-20 years of age of the equal protection of the laws in violation of the Fourteenth Amendment.
2
This action was brought in the District Court for the Western District of Oklahoma on December 20, 1972, by appellant Craig, a male then between 18 and 21 years of age, and by appellant Whitener, a licensed vendor of 3.2% beer. The complaint sought declaratory and injunctive relief against enforcement of the gender-based differential on the ground that it constituted invidious discrimination against males 18-20 years of age. A three-judge court convened under 28 U.S.C. § 2281 sustained the constitutionality of the statutory differential and dismissed the action. 399 F.Supp. 1304 (1975). We noted probable jurisdiction of appellants' appeal, 423 U.S. 1047, 96 S.Ct. 771, 46 L.Ed.2d 635 (1976). We reverse.
3
* We first address a preliminary question of standing. Appellant Craig attained the age of 21 after we noted probable jurisdiction. Therefore, since only declaratory and injunctive relief against enforcement of the gender-based differential is sought, the controversy has been rendered moot as to Craig. See, e. g., DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974).2 The question thus arises whether appellant Whitener, the licensed vendor of 3.2% beer, who has a live controversy against enforcement of the statute, may rely upon the equal protection objections of males 18-20 years of age to establish her claim of unconstitutionality of the age-sex differential. We conclude that she may.
4
Initially, it should be noted that, despite having had the opportunity to do so,3 appellees never raised before the District Court any objection to Whitener's reliance upon the claimed unequal treatment of 18-20-year-old males as the premise of her equal protection challenge to Oklahoma's 3.2% beer law. See 399 F.Supp., at 1306 n. 1. Indeed, at oral argument Oklahoma acknowledged that appellees always "presumed" that the vendor, subject to sanctions and loss of license for violation of the statute, was a proper party in interest to object to the enforcement of the sex-based regulatory provision. Tr. of Oral Arg. 41. While such a concession certainly would not be controlling upon the reach of this Court's constitutional authority to exercise jurisdiction under Art. III, see, e. g., Sierra Club v. Morton, 405 U.S. 727, 732 n. 3, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972); cf. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970), our decisions have settled that limitations on a litigant's assertion of jus tertii are not constitutionally mandated, but rather stem from a salutary "rule of self-restraint" designed to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined and speculative. See, e. g., Barrows v. Jackson, 346 U.S. 249, 255, 257, 73 S.Ct. 1031, 1034, 1035, 97 L.Ed. 1586 (1953); see also Singleton v. Wulff, 428 U.S. 106, 123-124, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) (Powell, J., dissenting). These prudential objectives, thought to be enhanced by restrictions on third-party standing, cannot be furthered here, where the lower court already has entertained the relevant constitutional challenge and the parties have sought or at least have never resisted an authoritative constitutional determination. In such circumstances, a decision by us to forgo consideration of the constitutional merits in order to await the initiation of a new challenge to the statute by injured third parties would be impermissibly to foster repetitive and time-consuming litigation under the guise of caution and prudence. Moreover, insofar as the applicable constitutional questions have been and continue to be presented vigorously and "cogently," Holden v. Hardy, 169 U.S. 366, 397, 18 S.Ct. 383, 390, 42 L.Ed. 780 (1898), the denial of jus tertii standing in deference to a direct class suit can serve no functional purpose. Our Brother Blackmun's comment is pertinent: "(I)t may be that a class could be assembled, whose fluid membership always included some (males) with live claims. But if the assertion of the right is to be 'representative' to such an extent anyway, there seems little loss in terms of effective advocacy from allowing its assertion by" the present jus tertii champion. Singleton v. Wulff, supra, at 117-118, 96 S.Ct. at 2875.
5
In any event, we conclude that appellant Whitener has established independently her claim to assert jus tertii standing. The operation of §§ 241 and 245 plainly has inflicted "injury in fact" upon appellant sufficient to guarantee her "concrete adverseness," Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), and to satisfy the constitutionally based standing requirements imposed by Art. III. The legal duties created by the statutory sections under challenge are addressed directly to vendors such as appellant. She is obliged either to heed the statutory discrimination, thereby incurring a direct economic injury through the constriction of her buyers' market, or to disobey the statutory command and suffer, in the words of Oklahoma's Assistant Attorney General, "sanctions and perhaps loss of license." Tr. of Oral Arg. 41. This Court repeatedly has recognized that such injuries establish the threshold requirements of a "case or controversy" mandated by Art. III. See, e. g., Singleton v. Wulff, supra, at 113, 96 S.Ct., at 2873 (doctors who receive payments for their abortion services are "classically adverse" to government as payer); Sullivan v. Little Hunting Park, 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969); Barrows v. Jackson, supra, 346 U.S., at 255-256, 73 S.Ct., at 1034-1035.
6
As a vendor with standing to challenge the lawfulness of §§ 241 and 245, appellant Whitener is entitled to assert those concomitant rights of third parties that would be "diluted or adversely affected" should her constitutional challenge fail and the statutes remain in force. Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 1679, 14 L.Ed.2d 510 (1965); see Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 432 (1974). Otherwise, the threatened imposition of governmental sanctions might deter appellant Whitener and other similarly situated vendors from selling 3.2% beer to young males, thereby ensuring that "enforcement of the challenged restriction against the (vendor) would result indirectly in the violation of third parties' rights." Warth v. Seldin, 422 U.S. 490, 510, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975). Accordingly, vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function. See, e. g., Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Sullivan v. Little Hunting Park, supra ; Barrows v. Jackson, supra.4
7
Indeed, the jus tertii question raised here is answered by our disposition of a like argument in Eisenstadt v. Baird, supra. There, as here, a state statute imposed legal duties and disabilities upon the claimant, who was convicted of distributing a package of contraceptive foam to a third party.5 Since the statute was directed at Baird and penalized his conduct, the Court did not hesitate again as here to conclude that the "case or controversy" requirement of Art. III was satisfied. 405 U.S., at 443, 92 S.Ct., at 1033. In considering Baird's constitutional objections, the Court fully recognized his standing to defend the privacy interests of third parties. Deemed crucial to the decision to permit jus tertii standing was the recognition of "the impact of the litigation on the third-party interests." Id., at 445, 92 S.Ct., at 1034. Just as the defeat of Baird's suit and the "(e)nforcement of the Massachusetts statute will materially impair the ability of single persons to obtain contraceptives," id., at 446, 92 S.Ct., at 1034, so too the failure of Whitener to prevail in this suit and the continued enforcement of §§ 241 and 245 will "materially impair the ability of" males 18-20 years of age to purchase 3.2% beer despite their classification by an overt gender-based criterion. Similarly, just as the Massachusetts law in Eisenstadt "prohibit(ed), not use, but distribution," 405 U.S., at 446, 92 S.Ct., at 1034, and consequently the least awkward challenger was one in Baird's position who was subject to that proscription, the law challenged here explicitly regulates the sale rather than use of 3.2% beer, thus leaving a vendor as the obvious claimant.
8
We therefore hold that Whitener has standing to raise relevant equal protection challenges to Oklahoma's gender-based law. We now consider those arguments.
II
A.
9
Before 1972, Oklahoma defined the commencement of civil majority at age 18 for females and age 21 for males. Okla.Stat., Tit. 15, § 13 (1972 and Supp.1976). In contrast, females were held criminally responsible as adults at age 18 and males at age 16. Okla.Stat., Tit. 10, § 1101(a) (Supp.1976). After the Court of Appeals for the Tenth Circuit held in 1972, on the authority of Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed. 225 (1971), that the age distinction was unconstitutional for purposes of establishing criminal responsibility as adults, Lamb v. Brown, 456 F.2d 18, the Oklahoma Legislature fixed age 18 as applicable to both males and females. Okla.Stat., Tit. 10, § 1101(a) (Supp.1976). In 1972, 18 also was established as the age of majority for males and females in civil matters, Okla.Stat., Tit. 15, § 13 (1972 and Supp.1976), except that §§ 241 and 245 of the 3.2% beer statute were simultaneously codified to create an exception to the gender-free rule.
10
Analysis may appropriately begin with the reminder that Reed emphasized that statutory classifications that distinguish between males and females are "subject to scrutiny under the Equal Protection Clause." 404 U.S., at 75, 92 S.Ct., at 253. To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Thus, in Reed, the objectives of "reducing the workload on probate courts," id., at 76, 92 S.Ct., at 254, and "avoiding intrafamily controversy," id., at 77, 92 S.Ct., at 254, were deemed of insufficient importance to sustain use of an overt gender criterion in the appointment of administrators of intestate decedents' estates. Decisions following Reed similarly have rejected administrative ease and convenience as sufficiently important objectives to justify gender-based classifications. See, e. g., Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551 (1972); Frontiero v. Richardson, 411 U.S. 677, 690, 93 S.Ct. 1764, 1772, 36 L.Ed.2d 583 (1973); cf. Schlesinger v. Ballard, 419 U.S. 498, 506-507, 95 S.Ct. 572, 576-577, 42 L.Ed.2d 610 (1975). And only two Terms ago, Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975), expressly stating that Reed v. Reed was "controlling," 421 U.S., at 13, 95 S.Ct., at 1377, held that Reed required invalidation of a Utah differential age-of-majority statute, notwithstanding the statute's coincidence with and furtherance of the State's purpose of fostering "old notions" of role typing and preparing boys for their expected performance in the economic and political worlds. 421 U.S., at 14-15, 95 S.Ct., at 1378.6
11
Reed v. Reed has also provided the underpinning for decisions that have invalidated statutes employing gender as an inaccurate proxy for other, more germane bases of classification. Hence, "archaic and overbroad" generalizations, Schlesinger v. Ballard, supra, 419 U.S., at 508, 95 S.Ct., at 577, concerning the financial position of servicewomen, Frontiero v. Richardson, supra, 411 U.S., at 689 n. 23, 93 S.Ct., at 1772, and working women, Weinberger v. Wiesenfeld, 420 U.S. 636, 643, 95 S.Ct. 1225, 1230, 43 L.Ed.2d 514 (1975), could not justify use of a gender line in determining eligibility for certain governmental entitlements. Similarly, increasingly outdated misconceptions concerning the role of females in the home rather than in the "marketplace and world of ideas" were rejected as loose-fitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy. Stanton v. Stanton, supra ; Taylor v. Louisiana, 419 U.S. 522, 535 n. 17, 95 S.Ct. 692, 700, 42 L.Ed.2d 690 (1975). In light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it was necessary that the legislatures choose either to realign their substantive laws in a gender-neutral fashion, or to adopt procedures for identifying those instances where the sex-centered generalization actually comported with fact. See, e. g., Stanley v. Illinois, supra, 405 U.S., at 658, 92 S.Ct., at 1216; cf. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 650, 94 S.Ct. 791, 801, 39 L.Ed.2d 52 (1974).
12
In this case, too, "Reed, we feel is controlling . . .," Stanton v. Stanton, supra, 421 U.S., at 13, 95 S.Ct., at 1377. We turn then to the question whether, under Reed, the difference between males and females with respect to the purchase of 3.2% beer warrants the differential in age drawn by the Oklahoma statute. We conclude that it does not.
B
13
The District Court recognized that Reed v. Reed was controlling. In applying the teachings of that case, the court found the requisite important governmental objective in the traffic-safety goal proffered by the Oklahoma Attorney General. It then concluded that the statistics introduced by the appellees established that the gender-based distinction was substantially related to achievement of that goal.
C
14
We accept for purposes of discussion the District Court's identification of the objective underlying §§ 241 and 245 as the enhancement of traffic safety.7 Clearly, the protection of public health and safety represents an important function of state and local governments. However, appellees' statistics in our view cannot support the conclusion that the gender-based distinction closely serves to achieve that objective and therefore the distinction cannot under Reed withstand equal protection challenge.
15
The appellees introduced a variety of statistical surveys. First, an analysis of arrest statistics for 1973 demonstrated that 18-20-year-old male arrests for "driving under the influence" and "drunkenness" substantially exceeded female arrests for that same age period.8 Similarly, youths aged 17-21 were found to be overrepresented among those killed or injured in traffic accidents, with males again numerically exceeding females in this regard.9 Third, a random roadside survey in Oklahoma City revealed that young males were more inclined to drive and drink beer than were their female counterparts.10 Fourth, Federal Bureau of Investigation nationwide statistics exhibited a notable increase in arrests for "driving under the influence."11 Finally, statistical evidence gathered in other jurisdictions, particularly Minnesota and Michigan, was offered to corroborate Oklahoma's experience by indicating the pervasiveness of youthful participation in motor vehicle accidents following the imbibing of alcohol. Conceding that "the case is not free from doubt," 399 F.Supp., at 1314, the District Court nonetheless concluded that this statistical showing substantiated "a rational basis for the legislative judgment underlying the challenged classification." Id., at 1307.
16
Even were this statistical evidence accepted as accurate, it nevertheless offers only a weak answer to the equal protection question presented here. The most focused and relevant of the statistical surveys, arrests of 18-20-year-olds for alcohol-related driving offenses, exemplifies the ultimate unpersuasiveness of this evidentiary record. Viewed in terms of the correlation between sex and the actual activity that Oklahoma seeks to regulate driving while under the influence of alcohol the statistics broadly establish that .18% of females and 2% of males in that age group were arrested for that offense. While such a disparity is not trivial in a statistical sense, it hardly can form the basis for employment of a gender line as a classifying device. Certainly if maleness is to serve as a proxy for drinking and driving, a correlation of 2% must be considered an unduly tenuous "fit."12 Indeed, prior cases have consistently rejected the use of sex as a decisionmaking factor even though the statutes in question certainly rested on far more predictive empirical relationships than this.13
17
Moreover, the statistics exhibit a variety of other shortcomings that seriously impugn their value to equal protection analysis. Setting aside the obvious methodological problems,14 the surveys do not adequately justify the salient features of Oklahoma's gender-based traffic-safety law. None purports to measure the use and dangerousness of 3.2% beer as opposed to alcohol generally, a detail that is of particular importance since, in light of its low alcohol level, Oklahoma apparently considers the 3.2% beverage to be "nonintoxicating." Okla.Stat., Tit. 37, § 163.1 (1958); see State ex rel. Springer v. Bliss, 199 Okl. 198, 185 P.2d 220 (1947). Moreover, many of the studies, while graphically documenting the unfortunate increase in driving while under the influence of alcohol, make no effort to relate their findings to age-sex differentials as involved here.15 Indeed, the only survey that explicitly centered its attention upon young drivers and their use of beer albeit apparently not of the diluted 3.2% variety reached results that hardly can be viewed as impressive in justifying either a gender or age classification.16
18
There is no reason to belabor this line of analysis. It is unrealistic to expect either members of the judiciary or state officials to be well versed in the rigors of experimental or statistical technique. But this merely illustrates that proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause.17 Suffice to say that the showing offered by the appellees does not satisfy us that sex represents a legitimate, accurate proxy for the regulation of drinking and driving. In fact, when it is further recognized that Oklahoma's statute prohibits only the selling of 3.2% beer to young males and not their drinking the beverage once acquired (even after purchase by their 18-20-year-old female companions), the relationship between gender and traffic safety becomes far too tenuous to satisfy Reed's requirement that the gender-based difference be substantially related to achievement of the statutory objective.
19
We hold, therefore, that under Reed, Oklahoma's 3.2% beer statute invidiously discriminates against males 18-20 years of age.
D
20
Appellees argue, however, that §§ 241 and 245 enforce state policies concerning the sale and distribution of alcohol and by force of the Twenty-first Amendment should therefore be held to withstand the equal protection challenge. The District Court's response to this contention is unclear. The court assumed that the Twenty-first Amendment "strengthened" the State's police powers with respect to alcohol regulation, 399 F.Supp. at 1307, but then said that "the standards of review that (the Equal Protection Clause) mandates are not relaxed." Id., at 1308. Our view is, and we hold, that the Twenty-first Amendment does not save the invidious gender-based discrimination from invalidation as a denial of equal protection of the laws in violation of the Fourteenth Amendment.
21
The history of state regulation of alcoholic beverages dates from long before adoption of the Eighteenth Amendment. In the License Cases, 5 How. 504, 579, 12 L.Ed. 256 (1847), the Court recognized a broad authority in state governments to regulate the trade of alcoholic beverages within their borders free from implied restrictions under the Commerce Clause. Later in the century, however, Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128 (1890), undercut the theoretical underpinnings of License Cases. This led Congress, acting pursuant to its powers under the Commerce Clause, to reinvigorate the State's regulatory role through the passage of the Wilson18 and Webb-Kenyon Acts.19 See, e. g., Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326 (1917) (upholding Webb-Kenyon Act); In re Rahrer, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572 (1891) (upholding Wilson Act). With passage of the Eighteenth Amendment, the uneasy tension between the Commerce Clause and state police power temporarily subsided.
22
The Twenty-first Amendment repealed the Eighteenth Amendment in 1933. The wording of § 2 of the Twenty-first Amendment20 closely follows the Webb-Kenyon and Wilson Acts, expressing the framers' clear intention of constitutionalizing the Commerce Clause framework established under those statutes. This Court's decisions since have confirmed that the Amendment primarily created an exception to the normal operation of the Commerce Clause. See, e. g., Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 1297, 12 L.Ed.2d 350 (1964); Carter v. Virginia, 321 U.S. 131, 139-140, 64 S.Ct. 464, 469-470, 88 L.Ed. 605 (1944) (Frankfurter, J., concurring); Finch & Co. v. McKittrick, 305 U.S. 395, 398, 59 S.Ct. 256, 257, 83 L.Ed. 246 (1939). Even here, however, the Twenty-first Amendment does not pro tanto repeal the Commerce Clause, but merely requires that each provision "be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case." Hostetter v. Idlewild Bon Voyage Liquor Corp., supra, 377 U.S., at 332, 84 S.Ct., at 1298; cf. Department of Revenue v. James Beam Distilling Co., 377 U.S. 341, 84 S.Ct. 1247, 12 L.Ed.2d 362 (1964); Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502 (1938).
23
Once passing beyond consideration of the Commerce Clause, the relevance of the Twenty-first Amendment to other constitutional provisions becomes increasingly doubtful. As one commentator has remarked: "Neither the text nor the history of the Twenty-first Amendment suggests that it qualifies individual rights protected by the Bill of Rights and the Fourteenth Amendment where the sale or use of liquor is concerned." P. Brest, Processes of Constitutional Decisionmaking, Cases and Materials 258 (1975). Any departures from this historical view have been limited and sporadic. Two States successfully relied upon the Twenty-first Amendment to respond to challenges of major liquor importers to state authority to regulate the importation and manufacture of alcoholic beverages on Commerce Clause and Fourteenth Amendment grounds. See Mahoney v. Joseph Triner Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424 (1938); State Board of Equalization of California v. Young's Market Co., 299 U.S. 59, 64, 57 S.Ct. 77, 79, 81 L.Ed. 38 (1936). In fact, however, the arguments in both cases centered upon importation of intoxicants, a regulatory area where the State's authority under the Twenty-first Amendment is transparently clear, Hostetter v. Idlewild Bon Voyage Liquor Corp., supra, 377 U.S., at 330, and n.9, 84 S.Ct., at 1297, and touched upon purely economic matters that traditionally merit only the mildest review under the Fourteenth Amendment, see, e. g., Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 47-48, 50-51, 86 S.Ct. 1254, 1262-1263, 1263-1264, 16 L.Ed.2d 336 (1966) (rejecting Fourteenth Amendment objections to state liquor laws on the strength of Ferguson v. Skrupa, 372 U.S. 726, 729-730, 83 S.Ct. 1028, 1030-1031, 10 L.Ed.2d 93 (1963) and Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955) ).21 Cases involving individual rights protected by the Due Process Clause have been treated in sharp contrast. For example, when an individual objected to the mandatory "posting" of her name in retail liquor establishments and her characterization as an "excessive drink(er)," the Twenty-first Amendment was held not to qualify the scope of her due process rights. Wisconsin v. Constantineau, 400 U.S. 433, 436, 91 S.Ct. 507, 509, 27 L.Ed.2d 515 (1971).
24
It is true that California v. LaRue, 409 U.S. 109, 115, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972), relied upon the Twenty-first Amendment to "strengthen" the State's authority to regulate live entertainment at establishments licensed to dispense liquor, at least when the performances "partake more of gross sexuality than of communication," id., at 118, 93 S.Ct., at 397. Nevertheless, the Court has never recognized sufficient "strength" in the Amendment to defeat an otherwise established claim of invidious discrimination in violation of the Equal Protection Clause. Rather, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 178-179, 92 S.Ct. 1965, 1974, 32 L.Ed.2d 627 (1972), establishes that state liquor regulatory schemes cannot work invidious discriminations that violate the Equal Protection Clause.
25
Following this approach, both federal and state courts uniformly have declared the unconstitutionality of gender lines that restrain the activities of customers of state-regulated liquor establishments irrespective of the operation of the Twenty-first Amendment. See, e. g., White v. Fleming, 522 F.2d 730 (CA7 1975); Women's Liberation Union of R.I. v. Israel, 512 F.2d 106 (CA1 1975); Daugherty v. Daley, 370 F.Supp. 338 (ND Ill.1974) (three-judge court); Seidenberg v. McSorleys' Old Ale House, Inc., 317 F.Supp. 593 (SDNY 1970); Commonwealth Alcoholic Beverage Control Bd. v. Burke, 481 S.W.2d 52 (Ky.1972); cf. Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529 (1971); Paterson Tavern & G. O. A. v. Hawthorne, 57 N.J. 180, 270 A.2d 628 (1970). Even when state officials have posited sociological or empirical justifications for these gender-based differentiations, the courts have struck down discriminations aimed at an entire class under the guise of alcohol regulation. In fact, social science studies that have uncovered quantifiable differences in drinking tendencies dividing along both racial and ethnic lines strongly suggest the need for application of the Equal Protection Clause in preventing discriminatory treatment that almost certainly would be perceived as invidious.22 In sum, the principles embodied in the Equal Protection Clause are not to be rendered inapplicable by statistically measured but loose-fitting generalities concerning the drinking tendencies of aggregate groups. We thus hold that the operation of the Twenty-first Amendment does not alter the application of equal protection standards that otherwise govern this case.
26
We conclude that the gender-based differential contained in Okla.Stat., Tit. 37, § 245 (1976 Supp.) constitutes a denial of the equal protection of the laws to males aged 18-2023 and reverse the judgment of the District Court.24
27
It is so ordered.
28
Mr. Justice POWELL, concurring.
29
I join the opinion of the Court as I am in general agreement with it. I do have reservations as to some of the discussion concerning the appropriate standard for equal protection analysis and the relevance of the statistical evidence. Accordingly, I add this concurring statement.
30
With respect to the equal protection standard, I agree that Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), is the most relevant precedent. But I find it unnecessary, in deciding this case, to read that decision as broadly as some of the Court's language may imply. Reed and subsequent cases involving gender-based classifications make clear that the Court subjects such classifications to a more critical examination than is normally applied when "fundamental" constitutional rights and "suspect classes" are not present.*
31
I view this as a relatively easy case. No one questions the legitimacy or importance of the asserted governmental objective: the promotion of highway safety. The decision of the case turns on whether the state legislature, by the classification it has chosen, had adopted a means that bears a " 'fair and substantial relation' " to this objective. Id., at 76, 92 S.Ct., at 254, quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).
32
It seems to me that the statistics offered by appellees and relied upon by the District Court do tend generally to support the view that young men drive more, possibly are inclined to drink more, and for various reasons are involved in more accidents than young women. Even so, I am not persuaded that these facts and the inferences fairly drawn from them justify this classification based on a three-year age differential between the sexes, and especially one that it so easily circumvented as to be virtually meaningless. Putting it differently, this gender-based classification does not bear a fair and substantial relation to the object of the legislation.
33
Mr. Justice STEVENS, concurring.
34
There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases. Whatever criticism may be leveled at a judicial opinion implying that there are at least three such standards applies with the same force to a double standard.
35
I am inclined to believe that what has become known as the two-tiered analysis of equal protection claims does not describe a completely logical method of deciding cases, but rather is a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion. I also suspect that a careful explanation of the reasons motivating particular decisions may contribute more to an identification of that standard than an attempt to articulate it in all-encompassing terms. It may therefore be appropriate for me to state the principal reasons which persuaded me to join the Court's opinion.
36
In this case, the classification is not as obnoxious as some the Court has condemned,1 nor as inoffensive as some the Court has accepted. It is objectionable because it is based on an accident of birth,2 because it is a mere remnant of the now almost universally rejected tradition of discriminating against males in this age bracket,3 and because, to the extent it reflects any physical difference between males and females, it is actually perverse.4 The question then is whether the traffic safety justification put forward by the State is sufficient to make an otherwise offensive classification acceptable.
37
The classification is not totally irrational. For the evidence does indicate that there are more males than females in this age bracket who drive and also more who drink. Nevertheless, there are several reasons why I regard the justification as unacceptable. It is difficult to believe that the statute was actually intended to cope with the problem of traffic safety,5 since it has only a minimal effect on access to a not very intoxicating beverage and does not prohibit its consumption.6 Moreover, the empirical data submitted by the State accentuate the unfairness of treating all 18-21-year-old males as inferior to their female counterparts. The legislation imposes a restraint on 100% of the males in the class allegedly because about 2% of them have probably violated one or more laws relating to the consumption of alcoholic beverages.7 It is unlikely that this law will have a significant deterrent effect either on that 2% or on the law-abiding 98%. But even assuming some such slight benefit, it does not seem to me that an insult to all of the young men of the State can be justified by visiting the sins of the 2% on the 98%.
38
Mr. Justice BLACKMUN, concurring in part.
39
I join the Court's opinion except Part II-D thereof. I agree, however, that the Twenty-first Amendment does not save the challenged Oklahoma statute.
40
Mr. Justice STEWART, concurring in the judgment.
41
I agree that the appellant Whitener has standing to assert the equal protection claims of males between 18 and 21 years old. Eisenstadt v. Baird, 405 U.S. 438, 443-446, 92 S.Ct. 1029, 1033-1035, 31 L.Ed.2d 349; Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 1679, 14 L.Ed.2d 510; Barrows v. Jackson, 346 U.S. 249, 255-260, 73 S.Ct. 1031, 1034-1037, 97 L.Ed. 1586; Buchanan v. Warley, 245 U.S. 60, 72-73, 38 S.Ct. 16, 17-18, 62 L.Ed. 149; see Note, Standing To Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 431-436 (1974). I also concur in the Court's judgment on the merits of the constitutional issue before us.
42
Every State has broad power under the Twenty-first Amendment to control the dispensation of alcoholic beverages within its borders. E. g., California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342; Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336; Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 1296, 12 L.Ed.2d 350; Mahoney v. Joseph Triner Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424; State Board of Equalization v. Young's Market Co., 299 U.S. 59, 57 S.Ct. 77, 81 L.Ed. 38. But "(t)his is not to say that the Twenty-first Amendment empowers a State to act with total irrationality or invidious discrimination in controlling the distribution and dispensation of liquor . . . ." California v. LaRue, supra, 409 U.S., at 120, 93 S.Ct., at 398 n. (concurring opinion).
43
The disparity created by these Oklahoma statutes amounts to total irrationality. For the statistics upon which the State now relies, whatever their other shortcomings, wholly fail to prove or even suggest that 3.2% beer is somehow more deleterious when it comes into the hands of a male aged 18-20 than of a female of like age. The disparate statutory treatment of the sexes here, without even a colorably valid justification or explanation, thus amounts to invidious discrimination. See Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225.
44
Mr. Chief Justice BURGER, dissenting.
45
I am in general agreement with Mr. Justice REHNQUIST's dissent, but even at the risk of compounding the obvious confusion created by those voting to reverse the District Court, I will add a few words.
46
At the outset I cannot agree that appellant Whitener has standing arising from her status as a saloonkeeper to assert the constitutional rights of her customers. In this Court "a litigant may only assert his own constitutional rights or immunities." United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 523, 4 L.Ed.2d 524 (1960). There are a few, but strictly limited exceptions to that rule; despite the most creative efforts, this case fits within none of them.
47
This is not Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), or Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953), for these is here no barrier whatever to Oklahoma males 18-20 years of age asserting, in an appropriate forum, any constitutional rights they may claim to purchase 3.2% beer. Craig's successful litigation of this very issue was prevented only by the advent of his 21st birthday. There is thus no danger of interminable dilution of those rights if appellant Whitener is not permitted to litigate them here. Cf. Eisenstadt v. Baird, 405 U.S. 438, 445-446, 92 S.Ct. 1029, 1034-1035, 31 L.Ed.2d 349 (1972).
48
Nor is this controlled by Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). It borders on the ludicrous to draw a parallel between a vendor of beer and the intimate professional physician-patient relationship which undergirded relaxation of standing rules in that case.
49
Even in Eisenstadt, the Court carefully limited its recognition of third-party standing to cases in which the relationship between the claimant and the relevant third party "was not simply the fortuitous connection between a vendor and potential vendees, but the relationship between one who acted to protect the rights of a minority and the minority itself." 405 U.S., at 445, 92 S.Ct., at 1034. This is plainly not the case here. See also McGowan v. Maryland, 366 U.S. 420, 429-430, 81 S.Ct. 1101, 1106-1108, 6 L.Ed.2d 393 (1961); Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973).
50
In sum, permitting a vendor to assert the constitutional rights of vendees whenever those rights are arguably infringed introduces a new concept of constitutional standing to which I cannot subscribe.
51
On the merits, we have only recently recognized that our duty is not "to create substantive constitutional rights in the name of guaranteeing equal protection of the laws." San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33, 93 S.Ct. 1278, 1297, 36 L.Ed.2d 16 (1973). Thus, even interests of such importance in our society as public education and housing do not qualify as "fundamental rights" for equal protection purposes because they have no textually independent constitutional status. See id., at 29-39, 93 S.Ct., at 1294-1300 (education); Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972) (housing). Though today's decision does not go so far as to make gender-based classifications "suspect," it makes gender a disfavored classification. Without an independent constitutional basis supporting the right asserted or disfavoring the classification adopted, I can justify no substantive constitutional protection other than the normal McGowan v. Maryland, supra, at 425-426, 81 S.Ct., at 1104-1105, protection afforded by the Equal Protection Clause.
52
The means employed by the Oklahoma Legislature to achieve the objectives sought may not be agreeable to some judges, but since eight Members of the Court think the means not irrational, I see no basis for striking down the statute as violative of the Constitution simply because we find it unwise, unneeded, or possibly even a bit foolish.
53
With Mr. Justice REHNQUIST, I would affirm the judgment of the District Court.
54
Mr. Justice REHNQUIST, dissenting.
55
The Court's disposition of this case is objectionable on two grounds. First is its conclusion that men challenging a gender-based statute which treats them less favorably than women may invoke a more stringent standard of judicial review than pertains to most other types of classifications. Second is the Court's enunciation of this standard, without citation to any source, as being that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Ante at 197 (emphasis added). The only redeeming feature of the Court's opinion, to my mind, is that it apparently signals a retreat by those who joined the plurality opinion in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), from their view that sex is a "suspect" classification for purposes of equal protection analysis. I think the Oklahoma statute challenged here need pass only the "rational basis" equal protection analysis expounded in cases such as McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), and Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955), and I believe that it is constitutional under that analysis.
56
* In Frontiero v. Richardson, supra, the opinion for the plurality sets forth the reasons of four Justices for concluding that sex should be regarded as a suspect classification for purposes of equal protection analysis. These reasons center on our Nation's "long and unfortunate history of sex discrimination," 411 U.S., at 684, 93 S.Ct., at 1769, which has been reflected in a whole range of restrictions on the legal rights of women, not the least of which have concerned the ownership of property and participation in the electoral process. Noting that the pervasive and persistent nature of the discrimination experienced by women is in part the result of their ready identifiability, the plurality rested its invocation of strict scrutiny largely upon the fact that "statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members." Id., at 686-687, 93 S.Ct., at 1770. See Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1377-1378, 43 L.Ed.2d 688 (1975).
57
Subsequent to Frontiero, the Court has declined to hold that sex is a suspect class, Stanton v. Stanton, supra, at 13, 95 S.Ct., at 1377, and no such holding is imported by the Court's resolution of this case. However, the Court's application here of an elevated or "intermediate" level scrutiny, like that invoked in cases dealing with discrimination against females, raises the question of why the statute here should be treated any differently from countless legislative classifications unrelated to sex which have been upheld under a minimum rationality standard. Jefferson v. Hackney, 406 U.S. 535, 546-547, 92 S.Ct. 1724, 1731-1732, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 81-84, 92 S.Ct. 254, 257-259, 30 L.Ed.2d 231 (1971); Dandridge v. Williams, 397 U.S. 471, 484-485, 90 S.Ct. 1153, 1161-1162, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, supra, 366 U.S., at 425-426, 81 S.Ct., at 1104-1105; Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960); Williamson v. Lee Optical Co., supra, 348 U.S., at 488-489, 75 S.Ct., at 464-465.
58
Most obviously unavailable to support any kind of special scrutiny in this case, is a history or pattern of past discrimination, such as was relied on by the plurality in Frontiero to support its invocation of strict scrutiny. There is no suggestion in the Court's opinion that males in this age group are in any way peculiarly disadvantaged, subject to systematic discriminatory treatment, or otherwise in need of special solicitude from the courts.
59
The Court does not discuss the nature of the right involved, and there is no reason to believe that it sees the purchase of 3.2% beer as implicating any important interest, let alone one that is "fundamental" in the constitutional sense of invoking strict scrutiny. Indeed, the Court's accurate observation that the statute affects the selling but not the drinking of 3.2% beer, ante, at 204, further emphasizes the limited effect that it has on even those persons in the age group involved. There is, in sum, nothing about the statutory classification involved here to suggest that it affects an interest, or works against a group, which can claim under the Equal Protection Clause that it is entitled to special judicial protection.
60
It is true that a number of our opinions contain broadly phrased dicta implying that the same test should be applied to all classifications based on sex, whether affecting females or males. E. g., Frontiero v. Richardson, supra, 411 U.S., at 688, 93 S.Ct., at 1771; Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971). However, before today, no decision of this Court has applied an elevated level of scrutiny to invalidate a statutory discrimination harmful to males, except where the statute impaired an important personal interest protected by the Constitution.1 There being no such interest here, and there being no plausible argument that this is a discrimination against females,2 the Court's reliance on our previous sex-discrimination cases is ill-founded. It treats gender classification as a talisman which without regard to the rights involved or the persons affected calls into effect a heavier burden of judicial review.
61
The Court's conclusion that a law which treats males less favorably than females "must serve important governmental objectives and must be substantially related to achievement of those objectives" apparently comes out of thin air. The Equal Protection Clause contains no such language, and none of our previous cases adopt that standard. I would think we have had enough difficulty with the two standards of review which our cases have recognized the norm of "rational basis," and the "compelling state interest" required where a "suspect classification" is involved so as to counsel weightily against the insertion of still another "standard" between those two. How is this Court to divine what objectives are important? How is it to determine whether a particular law is "substantially" related to the achievement of such objective, rather than related in some other way to its achievement? Both of the phrases used are so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation, masquerading as judgments whether such legislation is directed at "important" objectives or, whether the relationship to those objectives is "substantial" enough.
62
I would have thought that if this Court were to leave anything to decision by the popularly elected branches of the Government, where no constitutional claim other than that of equal protection is invoked, it would be the decision as to what governmental objectives to be achieved by law are "important," and which are not. As for the second part of the Court's new test, the Judicial Branch is probably in no worse position than the Legislative or Executive Branches to determine if there is any rational relationship between a classification and the purpose which it might be thought to serve. But the introduction of the adverb "substantially" requires courts to make subjective judgments as to operational effects, for which neither their expertise nor their access to data fits them. And even if we manage to avoid both confusion and the mirroring of our own preferences in the development of this new doctrine, the thousands of judges in other courts who must interpret the Equal Protection Clause may not be so fortunate.
II
63
The applicable rational-basis test is one which
64
"permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, supra, 366 U.S., at 425-426, 81 S.Ct., at 1105 (citations omitted).
65
Our decisions indicate that application of the Equal Protection Clause in a context not justifying an elevated level of scrutiny does nor demand "mathematical nicety" or the elimination of all inequality. Those cases recognize that the practical problems of government may require rough accommodations of interests, and hold that such accommodations should be respected unless no reasonable basis can be found to support them. Dandridge v. Williams, 397 U.S., at 485, 90 S.Ct., at 1161. Whether the same ends might have been better or more precisely served by a different approach is no part of the judicial inquiry under the traditional minimum rationality approach. Richardson v. Belcher, 404 U.S., at 84, 92 S.Ct., at 258.
66
The Court "accept(s) for purposes of discussion" the District Court's finding that the purpose of the provisions in question was traffic safety, and proceeds to examine the statistical evidence in the record in order to decide if "the gender-based distinction closely serves to achieve that objective." Ante, at 199, 200 (emphasis added). (Whether there is a difference between laws which "closely serv(e)" objectives and those which are only "substantially related" to their achievement, ante, at 197, we are not told.) I believe that a more traditional type of scrutiny is appropriate in this case, and I think that the Court would have done well here to heed its own warning that "(i)t is unrealistic to expect . . . members of the judiciary . . . to be well versed in the rigors of experimental or statistical technique." Ante, at 204. One need not immerse oneself in the fine points of statistical analysis, however, in order to see the weaknesses in the Court's attempted denigration of the evidence at hand.
67
One survey of arrest statistics assembled in 1973 indicated that males in the 18-20 age group were arrested for "driving under the influence" almost 18 times as often as their female counterparts, and for "drunkenness" in a ratio of almost 10 to 1.3 Accepting, as the Court does, appellants' comparison of the total figures with 1973 Oklahoma census data, this survey indicates a 2% arrest rate among males in the age group, as compared to a .18% rate among females.
68
Other surveys indicated (1) that over the five-year period from 1967 to 1972, nationwide arrests among those under 18 for drunken driving increased 138%, and that 93% of all persons arrested for drunken driving were male;4 (2) that youths in the 17-21 age group were overrepresented among those killed or injured in Oklahoma traffic accidents, that male casualties substantially exceeded female, and that deaths in this age group continued to rise while overall traffic deaths declined;5 (3) that over three-fourths of the drivers under 20 in the Oklahoma City area are males, and that each of them, on average, drives half again as many miles per year as their female counterparts;6 (4) that four-fifths of male drivers under 20 in the Oklahoma City area state a drink preference for beer, while about three-fifths of female drivers of that age state the same preference;7 and (5) that the percentage of male drivers under 20 admitting to drinking within two hours of driving was half again larger than the percentage for females, and that the percentage of male drivers of that age group with a blood alcohol content greater than .01% was almost half again larger than for female drivers.8
69
The Court's criticism of the statistics relied on by the District Court conveys the impression that a legislature in enacting a new law is to be subjected to the judicial equivalent of a doctoral examination in statistics. Legislatures are not held to any rules of evidence such as those which may govern courts or other administrative bodies, and are entitled to draw factual conclusions on the basis of the determination of probable cause which an arrest by a police officer normally represents. In this situation, they could reasonably infer that the incidence of drunk driving is a good deal higher than the incidence of arrest.
70
And while, as the Court observes, relying on a report to a Presidential Commission which it cites in a footnote, such statistics may be distorted as a result of stereotyping, the legislature is not required to prove before a court that its statistics are perfect. In any event, if stereotypes are as pervasive as the Court suggests, they may in turn influence the conduct of the men and women in question, and cause the young men to conform to the wild and reckless image which is their stereotype.
71
The Court also complains of insufficient integration of the various surveys on several counts that the injury and death figures are in no way directly correlated with intoxication, ante, at 201 n. 9; that the national arrest figures for drunk driving contain no breakdown for the 18 to 21-year-old group, ante, at 459, n. 11; and that the arrest records for intoxication are not tied to the consumption of 3.2% beer, ante, at 201-202, nn. 11 and 12. But the State of Oklahoma and certainly this Court for purposes of equal protection review can surely take notice of the fact that drunkenness is a significant cause of traffic casualties, and that youthful offenders have participated in the increase of the drunk-driving problem. On this latter point, the survey data indicating increased driving casualties among 18-21-year-olds, while overall casualties dropped, are not irrelevant.
72
Nor is it unreasonable to conclude from the expressed preference for beer by four-fifths of the age-group males that that beverage was a predominant source of their intoxication-related arrests. Taking that as the predicate, the State could reasonably bar those males from any purchases of alcoholic beer, including that of the 3.2% variety. This Court lacks the expertise or the data to evaluate the intoxicating properties of that beverage, and in that posture our only appropriate course is to defer to the reasonable inference supporting the statute that taken in sufficient quantity this beer has the same effect as any alcoholic beverage.
73
Quite apart from these alleged methodological deficiencies in the statistical evidence, the Court appears to hold that that evidence, on its face, fails to support the distinction drawn in the statute. The Court notes that only 2% of males (as against .18% of females) in the age group were arrested for drunk driving, and that this very low figure establishes "an unduly tenuous 'fit' " between maleness and drunk driving in the 18 to 20-year-old group. On this point the Court misconceives the nature of the equal protection inquiry.
74
The rationality of a statutory classification for equal protection purposes does not depend upon the statistical "fit" between the class and the trait sought to be singled out. It turns on whether there may be a sufficiently higher incidence of the trait within the included class than in the excluded class to justify different treatment. Therefore the present equal protection challenge to this gender-based discrimination poses only the question whether the incidence of drunk driving among young men is sufficiently greater than among young women to justify differential treatment. Notwithstanding the Court's critique of the statistical evidence, that evidence suggests clear differences between the drinking and driving habits of young men and women. Those differences are grounds enough for the State reasonably to conclude that young males pose by far the greater drunk-driving hazard, both in terms of sheer numbers and in terms of hazard on a per-driver basis. The gender-based difference in treatment in this case is therefore not irrational.
75
The Court's argument that a 2% correlation between maleness and drunk driving is constitutionally insufficient therefore does not pose an equal protection issue concerning discrimination between males and females. The clearest demonstration of this is the fact that the precise argument made by the Court would be equally applicable to a flat bar on such purchases by anyone, male or female, in the 18-20 age group; in fact it would apply a fortiori in that case given the even more "tenuous 'fit' " between drunk-driving arrests and femaleness. The statistics indicate that about 1% of the age group population as a whole is arrested. What the Court's argument is relevant to is not equal protection, but due process whether there are enough persons in the category who drive while drunk to justify a bar against purchases by all members of the group.
76
Cast in those terms, the argument carries little weight, in light of our decisions indicating that such questions call for a balance of the State's interest against the harm resulting from any overinclusiveness or underinclusiveness. Vlandis v. Kline, 412 U.S. 441, 448-452, 93 S.Ct. 2230, 2234-2236, 37 L.Ed.2d 63 (1973). The personal interest harmed here is very minor the present legislation implicates only the right to purchase 3.2% beer, certainly a far cry from the important personal interests which have on occasion supported this Court's invalidation of statutes on similar reasoning. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972). And the state interest involved is significant the prevention of injury and death on the highways.
77
This is not a case where the classification can only be justified on grounds of administrative convenience. Vlandis v. Kline, supra, 412 U.S., at 451, 93 S.Ct., at 2236; Stanley v. Illinois, supra, 405 U.S., at 656, 92 S.Ct., at 1215. There being no apparent way to single out persons likely to drink and drive, it seems plain that the legislature was faced here with the not atypical legislative problem of legislating in terms of broad categories with regard to the purchase and consumption of alcohol. I trust, especially in light of the Twenty-first Amendment, that there would be no due process violation if no one in this age group were allowed to purchase 3.2% beer. Since males drink and drive at a higher rate than the age group as a whole, I fail to see how a statutory bar with regard only to them can create any due process problem.
78
The Oklahoma Legislature could have believed that 18-20-year-old males drive substantially more, and tend more often to be intoxicated than their female counterparts; that they prefer beer and admit to drinking and driving at a higher rate than females; and that they suffer traffic injuries out of proportion to the part they make up of the population. Under the appropriate rational-basis test for equal protection, it is neither irrational nor arbitrary to bar them from making purchases of 3.2% beer, which purchases might in many cases be made by a young man who immediately returns to his vehicle with the beverage in his possession. The record does not give any good indication of the true proportion of males in the age group who drink and drive (except that it is no doubt greater than the 2% who are arrested), but whatever it may be I cannot see that the mere purchase right involved could conceivably raise a due process question. There being no violation of either equal protection or due process, the statute should accordingly be upheld.
1
Sections 241 and 245 provide in pertinent part:
§ 241. "It shall be unlawful for any person who holds a license to sell and dispense beer . . . to sell, barter or give to any minor any beverage containing more than one-half of one per cent of alcohol measured by volume and not more than three and two-tenths (3.2) per cent of alcohol measured by weight.
§ 245. "A 'minor,' for the purposes of Section . . . 241 . . . is defined as a female under the age of eighteen (18) years, and a male under the age of twenty-one (21) years."
2
Appellants did not seek class certification of Craig as representative of other similarly situated males 18-20 years of age. See, e. g., Sosna v. Iowa, 419 U.S. 393, 401, 95 S.Ct. 553, 558, 42 L.Ed.2d 532 (1975).
3
The District Court's opinion confirms that Whitener from the outset has based her constitutional challenge on gender-discrimination grounds, 399 F.Supp., at 1306, and "(n)o challenge is made to (her) standing and requisite interest in the controversy . . . ." Id., at 1306 n. 1.
4
The standing question presented here is not answered by the principle stated in United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960), that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." In Raines, the Court refused to permit certain public officials of Georgia to defend against application of the Civil Rights Act to their official conduct on the ground that the statute also might be construed to encompass the "purely private actions" of others. The Raines rule remains germane in such a setting, where the interests of the litigant and the rights of the proposed third parties are in no way mutually interdependent. Thus, a successful suit against Raines did not threaten to impair or diminish the independent private rights of others, and consequently, consideration of those third-party rights properly was deferred until another day.
Of course, the Raines principle has also been relaxed where legal action against the claimant threatens to "chill" the First Amendment rights of third parties. See, e. g., Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974).
5
The fact that Baird chose to disobey the legal duty imposed upon him by the Massachusetts, anticontraception statute, resulting in his criminal conviction, 405 U.S., at 440, 92 S.Ct., at 1031, does not distinguish the standing inquiry from that pertaining to the anticipatory attack in this case. In both Eisenstadt and here, the challenged statutes compel jus tertii claimants either to cease their proscribed activities or to suffer appropriate sanctions. The existence of Art. III "injury in fact" and the structure of the claimant's relationship to the third parties are not altered by the litigative posture of the suit. And, certainly, no suggestion will be heard that Whitener's anticipatory challenge offends the normal requirements governing such actions. See generally Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
6
Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974) and Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975), upholding the use of gender-based classifications, rested upon the Court's perception of the laudatory purposes of those laws as remedying disadvantageous conditions suffered by women in economic and military life. See 416 U.S., at 353-354, 94 S.Ct. at 1736-1737; 419 U.S., at 508, 95 S.Ct., at 577. Needless to say, in this case Oklahoma does not suggest that the age-sex differential was enacted to ensure the availability of 3.2% beer for women as compensation for previous deprivations.
7
That this was the true purpose is not at all self-evident. The purpose is not apparent from the face of the statute and the Oklahoma Legislature does not preserve statutory history materials capable of clarifying the objectives served by its legislative enactments. The District Court acknowledged the nonexistence of materials necessary "to reveal what the actual purpose of the legislature was," but concluded that "we feel it apparent that a major purpose of the legislature was to promote the safety of the young persons affected and the public generally." 399 F.Supp., at 1311 n. 6. Similarly, the attorney for Oklahoma, while proposing traffic safety as a legitimate rationale for the 3.2% beer law, candidly acknowledged at oral argument that he is unable to assert that traffic safety is "indeed the reason" for the gender line contained in § 245. Tr. of Oral Arg. 27. For this appeal we find adequate the appellee's representation of legislative purpose, leaving for another day consideration of whether the statement of the State's Assistant Attorney General should suffice to inform this Court of the legislature's objectives, or whether the Court must determine if the litigant simply is selecting a convenient, but false, post hoc rationalization.
8
The disparities in 18-20-year-old male-female arrests were substantial for both categories of offenses: 427 versus 24 for driving under the influence of alcohol, and 966 versus 102 for drunkenness. Even if we assume that a legislature may rely on such arrest data in some situations, these figures do not offer support for a differential age line, for the disproportionate arrests of males persisted at older ages; indeed, in the case of arrests for drunkenness, the figures for all ages indicated "even more male involvement in such arrests at later ages." 399 F.Supp., at 1309. See also n. 14, infra.
9
This survey drew no correlation between the accident figures for any age group and levels of intoxication found in those killed or injured.
10
For an analysis of the results of this exhibit, see n. 16, infra.
11
The FBI made no attempt to relate these arrest figures either to beer drinking or to an 18-21 age differential, but rather found that male arrests for all ages exceeded 90% of the total.
12
Obviously, arrest statistics do not embrace all individuals who drink and drive. But for purposes of analysis, this "underinclusiveness" must be discounted somewhat by the shortcomings inherent in this statistical sample, see n. 14, infra. In any event, we decide this case in light of the evidence offered by Oklahoma and know of no way of extrapolating these arrest statistics to take into account the driving and drinking population at large, including those who avoided arrest.
13
For example, we can conjecture that in Reed, Idaho's apparent premise that women lacked experience in formal business matters (particularly compared to men) would have proved to be accurate in substantially more than 2% of all cases. And in both Frontiero and Wiesenfeld, we expressly found appellees' empirical defense of mandatory dependency tests for men but not women to be unsatisfactory, even though we recognized that husbands are still far less likely to be dependent on their wives than vice versa. See, e. g., 411 U.S., at 688-690, 93 S.Ct., at 1771-1772.
14
The very social stereotypes that find reflection in age-differential laws, see Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct., at 1378 (1975), are likely substantially to distort the accuracy of these comparative statistics. Hence "reckless" young men who drink and drive are transformed into arrest statistics, whereas their female counterparts are chivalrously escorted home. See, e. g., W. Reckless & B. Kay, The Female Offender 4, 7, 13, 16-17 (Report to Presidential Commission on Law Enforcement and Administration of Justice, 1967). Moreover, the Oklahoma surveys, gathered under a regime where the age-differential law in question has been in effect, are lacking in controls necessary for appraisal of the actual effectiveness of the male 3.2% beer prohibition. In this regard, the disproportionately high arrest statistics for young males and, indeed, the growing alcohol-related arrest figures for all ages and sexes simply may be taken to document the relative futility of controlling driving behavior by the 3.2% beer statute and like legislation, although we obviously have no means of estimating how many individuals, if any, actually were prevented from drinking by these laws.
15
See, e. g., nn. 9 and 11, supra. See also n. 16, infra.
16
The random roadside survey of drivers conducted in Oklahoma City during August 1972 found that 78% of drivers under 20 were male. Turning to an evaluation of their drinking habits and factoring out nondrinkers, 84% of the males versus 77% of the females expressed a preference for beer. Further 16.5% of the men and 11.4% of the women had consumed some alcoholic beverage within two hours of the interview. Finally, a blood alcohol concentration greater than .01% was discovered in 14.6% of the males compared to 11.5% of the females. "The 1973 figures, although they contain some variations, reflect essentially the same pattern." 399 F.Supp., at 1309. Plainly these statistical disparities between the sexes are not substantial. Moreover, when the 18-20 age boundaries are lifted and all drivers analyzed, the 1972 roadside survey indicates that male drinking rose slightly whereas female exposure to alcohol remained relatively constant. Again, in 1973, the survey established that "compared to all drivers interviewed, . . . the under-20 age group generally showed a lower involvement with alcohol in terms of having drunk within the past two hours or having a significant BAC (blood alcohol content)." Ibid. In sum, this survey provides little support for a gender line among teenagers and actually runs counter to the imposition of drinking restrictions based upon age.
17
See, e. g., n. 22, infra.
18
The Wilson Act, enacted in 1890, reads in pertinent part: "All . . . intoxicating liquors or liquids transported into any State or Territory . . . shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory . . . ." 27 U.S.C. § 121.
19
The Webb-Kenyon Act of 1913 prohibits "(t)he shipment or transportation . . . of any . . . intoxicating liquor of any kind from one State, Territory, or District . . . into any other State, Territory, or District . . . (for the purpose of being) received, possessed, sold, or in any manner used . . . in violation of any law of such State, Territory, or District . . .." 27 U.S.C. § 122.
20
"The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."
21
The dictum contained in State Board of Equalization of California v. Young's Market Co., 299 U.S. 59, 64, 57 S.Ct. 77, 79, 81 L.Ed. 38 (1936), that "(a) classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth," is inapplicable to this case. The Twenty-first Amendment does not recognize, even indirectly, classifications based upon gender. And, as the accompanying text demonstrates, that statement has not been relied upon in recent cases that have considered Fourteenth Amendment challenges to state liquor regulation.
22
Thus, if statistics were to govern the permissibility of state alcohol regulation without regard to the Equal protection Clause as a limiting principle, it might follow that States could freely favor Jews and Italian Catholics at the expense of all other Americans, since available studies regularly demonstrate that the former two groups exhibit the lowest rates of problem drinking. See, e. g., Haberman & Sheinberg, Implicative Drinking Reported in a Household Survey: A Corroborative Note on Subgroup Differences, 28 Q. J. Studies on Alcohol 538 (1967); Wechsler, Thum, Demone, & Dwinnell, Social Characteristics and Blood Alcohol Level, 33 Q. J. Studies on Alcohol 132, 141-142 (1972); Wechsler,
Demone, Thum, & Kasey, Religious-Ethnic Differences In Alcohol Consumption, 11 J. Health & Soc. Behavior 21, 28 (1970); Schmidt & Popham, Impressions of Jewish Alcoholics, 37 J. Studies on Alcohol 931 (1976). Similarly, if a State were allowed simply to depend upon demographic characteristics of adolescents in identifying problem drinkers, statistics might support the conclusion that only black teenagers should be permitted to drink, followed by Asian-Americans and Spanish-Americans. "Whites and American Indians have the lowest proportions of abstainers and the highest proportions of moderate/heavy and heavy drinkers." Summary of Final Report of a National Study of Adolescent Drinking Behavior, Attitudes and Correlates 147-148 (Center for the Study of Social Behavior, Research Triangle Inst., Apr. 1975) (percentage of moderate/heavy and heavy adolescent drinkers by race: black 15.2%; Asian-American 18.3%; Spanish-American 22.7%; white 25.3%; American Indian 28.1%).
In the past, some States have acted upon their notions of the drinking propensities of entire groups in fashioning their alcohol policies. The most typical recipient of this treatment has been the American Indian; indeed, several States established criminal sanctions for the sale of alcohol to an Indian or "half or quarter breed Indian." See, e. g., Fla.Stat.Ann. § 569.07 (1962 and 1976 Supp.) (repealed in 1972); Iowa Code Ann. § 732.5 (1950 and 1976 Supp.) (repealed in 1967); Minn.Stat.Ann. § 340.82 (1957) (repealed in 1969); Neb.Rev.Stat. 53-181 (1944) (repealed in 1955); Utah Code Ann. § 76-34-1 (1953 and 1975 Supp.) (repealed in 1955). Other statutes and constitutional provisions proscribed the introduction of alcoholic beverages onto Indian reservations. See, e. g., Act of June 10, 1910, § 2, 36 Stat. 558; Ariz.Const., Art. XX, § 3; N.M.Const., Art. XXI, § 8; Okla.Const., Art. I, § 7. While Indian-oriented provisions were the most common, state alcohol beverage prohibitions also have been directed at other groups, notably German, Italian, and Catholic immigrants. See, e. g., J. Higham, Strangers in the Land 25, 267-268, 295 (1975). The repeal of most of these laws signals society's perception of the unfairness and questionable constitutionality of singling out groups to bear the brunt of alcohol regulation.
*
As is evident from our opinions, the Court has had difficulty in agreeing upon a standard of equal protection analysis that can be applied consistently to the wide variety of legislative classifications. There are valid reasons for dissatisfaction with the "two-tier" approach that has been prominent in the Court's decisions in the past decade. Although viewed by many as a result-oriented substitute for more critical analysis, that approach with its narrowly limited "upper-tier" now has substantial precedential support. As has been true of Reed and its progeny, our decision today will be viewed by some as a "middle-tier" approach. While I would not endorse that characterization and would not welcome a further subdividing of equal protection analysis, candor compels the recognition that the relatively deferential "rational basis" standard of review normally applied takes on a sharper focus when we address a gender-based classification. So much is clear from our recent cases. For thoughtful discussions of equal protection analysis, see, e. g., Gunther, The Supreme Court, 1971 Term Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for A Newer Equal Protection, 86 Harv.L.Rev. 1 (1972); Wilkinson, The Supreme Court, the Equal Protection Clause, and the Three Faces of Constitutional Equality, 61 Va.L.Rev. 945 (1975).
23
Insofar as Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948), may be inconsistent, that decision is disapproved. Undoubtedly reflecting the view that Goesaert's equal protection analysis no longer obtains, the District Court made no reference to that decision in upholding Oklahoma's statute. Similarly, the opinions of the federal and state courts cited earlier in the text invalidating gender lines with respect to alcohol regulation uniformly disparaged the contemporary vitality of Goesaert.
24
As noted in Stanton v. Stanton, 421 U.S., at 17-18, 95 S.Ct., at 1379-1380, the Oklahoma Legislature is free to redefine any cutoff age for the purchase and sale of 3.2% beer that it may choose, provided that the redefinition operates in a gender-neutral fashion.
1
Men as a general class have not been the victims of the kind of historic, pervasive discrimination that has disadvantaged other groups.
2
"(S)ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate 'the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . .,' Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768." Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583.
3
Apparently Oklahoma is the only State to permit this narrow discrimination to survive the elimination of the disparity between the age of majority for males and females.
4
Because males are generally heavier than females, they have a greater capacity to consume alcohol without impairing their driving ability than do females.
5
There is no legislative history to indicate that this was the purpose, and several features of the statutory scheme indicate the contrary. The statute exempts license holders who dispense 3.2% beer to their own children, and a related statute makes it unlawful for 18-year-old men (but not women) to work in establishments in which 3.2% beer accounts for over 25% of gross sales. Okla.Stat., Tit. 37, §§ 241, 243, 245 (1953 and Supp.1976).
There is, of course, no way of knowing what actually motivated this discrimination, but I would not be surprised if it represented nothing more than the perpetuation of a stereotyped attitude about the relative maturity of the members of the two sexes in this age bracket. If so, the following comment is relevant:
"(A) traditional classification is more likely to be used without pausing to consider its justification than is a newly created classification. Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and citizen, legitimate and illegitimate; for too much of our history there was the same inertia in distinguishing between black and white. But that sort of stereotyped reaction may have no rational relationship other than pure prejudicial discrimination to the stated purpose for which the classification is being made." Mathews v. Lucas, 427 U.S. 495, at 520-521, 96 S.Ct. 2755, at 2769, 49 L.Ed.2d 651 (Stevens, J., dissenting).
6
It forbids the sale of 3.2% beer to 18-21-year-old men without forbidding possession, or preventing them from obtaining it from other sources, such as friends who are either older or female. Thus, the statute only slightly impedes access to 3.2% beer.
7
The only direct evidence submitted by the State concerning use of beer by young drivers indicates that there is no substantial difference between the sexes. In a random roadside survey of drivers, 16.5% of the male drivers under 20 had consumed alcohol within two hours of the interview as opposed to 11.4% of the women. Over three-fourths of the nonabstainers in both groups expressed a preference for beer. And 14.6% of the men, as opposed to 11.5% of the women, had blood alcohol concentrations over .01%. See ante, at 203 n. 16.
1
In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the Court struck down a statute allowing separation of illegitimate children from a surviving father but not a surviving mother, without any showing of parental unfitness. The Court stated that "the interest of a parent in the companionship, care, custody, and management of his or her children 'come(s) to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' "
In Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), the Court upheld Florida's $500 property tax exemption for widows only. The opinion of the Court appears to apply a rational-basis test, id., at 355, 94 S.Ct., at 1737, and is so understood by the dissenters. Id., at 357, 94 S.Ct., at 1738 (BRENNAN, J., joined by MARSHALL, J., dissenting).
In Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), the Court invalidated § 202(g) of the Social Security Act, which allowed benefits to mothers but not fathers of minor children, who survive the wage earner. This statute was treated, in the opinion of the Court, as a discrimination against females wage earners, on the ground that it minimizes the financial security which their work efforts provide for their families. 420 U.S., at 645, 95 S.Ct., at 1231.
2
I am not unaware of the argument from time to time advanced, that all discriminations between the sexes ultimately redound to the detriment of females, because they tend to reinforce "old notions" restricting the roles and opportunities of women. As a general proposition applying equally to all sex categorizations, I believe that this argument was implicitly found to carry little weight in our decisions upholding gender-based differences. See Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Kahn v. Shevin, supra, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). Seeing no assertion that it has special applicability to the situation at hand, I believe it can be dismissed as an insubstantial consideration.
3
Extract from: Oklahoma Bureau of Investigation, Arrest Statistics for September, October, November, and December 1973. Defendants' Exhibit 1, Jurisdictional Statement A22. Extract from: Oklahoma City Police Department, Arrest Statistics for 1973. Defendants' Exhibit 2, Jurisdictional Statement A23. See ante, at 200 n. 8.
4
Extract from: Federal Bureau of Investigation, Crime in the United States, 1972. Defendants' Exhibit 6, App. 182-184.
5
Extract from: Oklahoma Department of Public Safety, Summary of Statewide Collisions for 1972, 1973. Defendants' Exhibits 4 and 5, Jurisdictional Statement A30-A31.
6
Extract from: Oklahoma Management and Engineering Consulting, Inc., Report to Alcohol Safety Action Program (1973). Defendants' Exhibit 3, Table 1, Jurisdictional Statement A25.
7
Id., at A27 (Table 3), A29 (Table 5).
8
Id., at A25 (Table 1). See ante, at 203 n. 16.
| 12
|
429 U.S. 245
97 S.Ct. 546
50 L.Ed.2d 444
John CONNALLYv.State of GEORGIA.
No. 76-461.
Jan. 10, 1977.
PER CURIAM.
1
Appellant John Connally was indicted, tried, and convicted in the Superior Court of Walker County, Ga., for possession of marihuana in violation of the Georgia Controlled Substances Act, Ga.Code Ann. § 79A-801 et seq. (1973). On his appeal to the Supreme Court of Georgia, he asserted trial error in four respects: the constitutional impropriety of the fee system governing the issuance of search warrants by justices of the peace in Georgia; the deprivation of his right of confrontation when revelation of an informer's identity was refused; the failure to give a requested instruction on joint occupancy of premises; and the failure to enter a judgment of acquittal because of an alleged absence of proof of the type of cannabis involved. The Supreme Court of Georgia affirmed, with two justices dissenting (one on the first issue) and one justice concurring as to the second, third, and fourth issues and in the judgment. 237 Ga. 203, 227 S.E.2d 352 (1976). The appellant, on direct appeal here,1 raises the first two questions. We deem the challenge to the warrant procedure worthy of consideration.
2
Pursuant to a search warrant issued by a justice of the peace, appellant's house was raided and marihuana found there was seized. Connally was arrested. At his trial he moved to suppress the evidence so seized on the ground that the justice who had issued the warrant was not "a neutral and detached magistrate"2 because he had a pecuniary interest in issuing the warrant. The trial court denied that motion, and the Supreme Court of Georgia, in affirming, rejected the constitutional challenge.
3
Under Ga.Code Ann. § 24-1601 (1971), the fee for the issuance of a search warrant by a Georgia justice of the peace "shall be" $5, "and it shall be lawful for said (justice) of the peace to charge and collect the same." If the requested warrant is refused, the justice of the peace collects no fee for reviewing and denying the application. The fee so charged apparently goes into county funds and from there to the issuing justice as compensation.
4
At a pretrial hearing in Connally's case, the issuing justice testified on cross-examination that he was a justice primarily because he was "interested in a livelihood." Record 502; that he received no salary, ibid.; that his compensation was "directly dependent on how many warrants" he issued, ibid.; that since January 1, 1973, he had issued "some 10,000" warrants for arrests or searches, ibid.; and that he had no legal background other than attendance at seminars and reading law, id., at 506-508, 512-515.3
5
Fifty years ago, in Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), the Court considered state statutes that permitted a charge of violating the State's prohibition laws to be tried without a jury before a village mayor. Any fine imposed was divided between the State and the village. The latter's share was used to hire attorneys and detectives to arrest offenders and prosecute them before the mayor. When the mayor convicted, he received fees and costs, and these were in addition to his salary. The Court, in an opinion by Mr. Chief Justice Taft, unanimously held that subjecting a defendant to trial before a judge having "a direct, personal, pecuniary interest in convicting the defendant," that is, in the $12 of fees and costs imposed, id., at 523, 531, 47 S.Ct. at 441, effected a denial of due process in violation of the Fourteenth Amendment.
6
This approach was reiterated in Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972). There, an Ohio statute authorized mayors to sit as judges of ordinance violations and certain traffic offenses. The petitioner was so convicted and fined by the mayor of Monroeville. Although the mayor had no direct personal financial stake in the outcome of cases before him, a major portion of the village's income was derived from the fines, fees, and costs imposed in the mayor's court. This Court, id., at 59-60, 93 S.Ct. 80, cited Tumey and repeated the test formulated in that case, namely, "whether the mayor's situation is one 'which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused . . . .' " 409 U.S., at 60, 93 S.Ct. at 83. Dugan v. Ohio, 277 U.S. 61, 48 S.Ct. 439, 72 L.Ed. 784 (1928), where a mayor had judicial functions but only "very limited executive authority," and the executive power rested in a city manager and a commission, was distinguished as a situation where "the Mayor's relationship to the finances and financial policy of the city was too remote to warrant a presumption of bias toward conviction in prosecutions before him as (a) judge." 409 U.S., at 60-61, 93 S.Ct. at 83, and the possibility of a later de novo trial in another court was held to be of no constitutional relevance because the defendant was "entitled to a neutral and detached judge in the first instance." Id., at 61-62, 93 S.Ct. at 84.
7
The present case, of course, is not precisely the same as Tumey or as Ward, but the principle of those cases, we conclude, is applicable to the Georgia system for the issuance of search warrants by justices of the peace. The justice is not salaried. He is paid, so far as search warrants are concerned, by receipt of the fee prescribed by statute for his issuance of the warrant, and he receives nothing for his denial of the warrant. His financial welfare, therefore is enhanced by positive action and is not enhanced by negative action. The situation, again, is one which offers "a possible temptation to the average man as a judge . . . or which might lead him not to hold the balance nice, clear and true between the State and the accused." It is, in other words, another situation where the defendant is subjected to what surely is judicial action by an officer of a court who has "a direct, personal, substantial, pecuniary interest" in his conclusion to issue or to deny the warrant. See Bennett v. Cottingham, 290 F.Supp. 759, 762-763 (N.D.Ala.1968), aff'd, 393 U.S. 317, 89 S.Ct. 554, 21 L.Ed.2d 513 (1969).
8
Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), does not weigh to the contrary. The issue there centered in the qualification of municipal court clerks to issue arrest warrants for breaches of ordinances. The Court held that the clerks, although laymen, worked within the judicial branch under the supervision of judges and were qualified to determine the existence of probable cause. They were, therefore, "neutral and detached magistrates for purposes of the Fourth Amendment." Id., at 346, 92 S.Ct. at 2121. There was no element of personal financial gain in the clerks' issuance or nonissuance of arrest warrants. Cf. Coolidge v. New Hampshire, 403 U.S. 443, 449-453, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
9
We disagree with the Supreme Court of Georgia's rulings, 237 Ga., at 205-206, 227 S.E.2d at 354-355, that the amount of the search warrant fee is de minimis in the present context, that the unilateral character of the justice's adjudication of probable cause distinguishes the present case from Tumey, and that, instead, this case equates with Bevan v. Krieger, 289 U.S. 459, 465-466, 53 S.Ct. 661, 77 L.Ed. 1316 (1933), where a notary public's fee for taking a deposition was measured by the folios of testimony taken.
10
We therefore hold that the issuance of the search warrant by the justice of the peace in Connally's case effected a violation of the protections afforded him by the Fourth and Fourteenth Amendments of the United States Constitution. The judgment of the Supreme Court of Georgia is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
11
So ordered.
1
Cf. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1967).
2
See Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Coolidge v. New Hampshire, 403 U.S. 443, 453, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972).
3
"Q In the case of a search warrant, I believe you receive compensation ultimately in the amount of $5.00, if you issue the warrant, do you not?
"A That's true.
"Q If you choose not to issue the warrant, what compensation do you receive?
"A I don't know.
"Q You receive no compensation?
"A Well, I never have, I'll put it that way.
"Q Now with respect to issuing the search warrant, Mr. Murphy, does the $5.00, since that's the only way you get paid, does that enter your mind when you're sitting there contemplating whether or not to issue a search warrant?
"A It has.
"Q As a matter of fact, I believe you quite honestly and candidly told me on the day we had that preliminary hearing up here, I believe that was on, the best I can recall, it was on the 18th of May, that you would be a liar if you said it didn't enter your mind?
"A That's what I said.
"Q Is that true now, you would be (a) liar if you said it didn't enter your mind?
"A It's only human nature to me.
"Q Okay. Now, I believe you said you had been a J. P. since January 1st of 1973, is that correct?
"A Yes, sir.
"Q All right. Now, since January you have to run for that office, or is it an appointed office?
"A Yes sir, it's an elected office.
"Q Well, you ran for the office for the purpose of having employment and earning a living, is that correct?
"A That's part of it.
"Q Of course, you like in other people's motivations primarily you were interested in a livelihood?
"A True.
"Q Now do you support yourself with the salary or with the fees that you receive in a J. P. system down here, or as J. P.?
"A Uh huh, yes sir.
"Q And you receive no salary at all, so that your compensation is directly dependent on how many warrants you issue, is that correct?
"A That's right.
"Q Now, since January 1st, 1973, I believe you told me the other day, and let me ask you again, you have issued some 10,000 warrants of the arrest either arrest or search warrants, is that correct?
"A That's pretty close, total warrants.
"Q Okay. Total warrants?
"A Criminal warrants.
"Q That would be right about 10,000 of them?
"A Uh huh.
"Q Now with respect to the qualifications that you have for your office, of course, the people of Walker County elected you and under the law that would qualify you, but I believe the law prescribes some qualifications that you must have prior to the time you are elected, what are those qualifications?
"A You have to be a resident of the militia district in which you're running for that office, registered voter, it might sound stupid but that's all I remember.
"Q Okay. Now of course, the people have selected you as the J. P. for this militia district, and you have the qualifications that you mentioned that you are a resident and of age and so on and so forth, other than those, do you have any background, legal background or other background with respect to the instruments and issuance of warrants?
"A No, sir.
"Q So, the qualifications that you have mentioned are your sole qualifications for holding your job, is that correct?
"A That's right.
"Q Okay.
"A Up to the time I was elected.
"MR. DANIEL: Okay, sir, that's all I have.
"THE COURT: Have you done anything since you were elected to improve any qualifications that might be necessary?
"THE WITNESS: Yes, sir.
"THE COURT: What have you done?
"THE WITNESS: I have attended several training seminars sponsored by our J. P. State Association, as a matter of fact, I'm leaving
this afternoon if I can get out of here to go to a 2-day training seminar in Warner Robbins, Georgia, sponsored by the same State Association.
"I've bought one manual, study course from Judson-Pace at my own expense and attempted to learn a little bit more about the duties." Record 499-500, 501-502, 506-508.
| 34
|
429 U.S. 252
97 S.Ct. 555
50 L.Ed.2d 450
VILLAGE OF ARLINGTON HEIGHTS et al., Petitioners,v.METROPOLITAN HOUSING DEVELOPMENT CORPORATION et al.
No. 75-616.
Argued Oct. 13, 1976.
Decided Jan. 11, 1977.
Syllabus
Respondent Metropolitan Housing Development Corp. (MHDC), a nonprofit developer, contracted to purchase a tract within the boundaries of petitioner Village in order to build racially integrated low- and moderate-income housing. The contract was contingent upon securing rezoning as well as federal housing assistance. MHDC applied to the Village for the necessary rezoning from a single-family to a multiple-family (R-5) classification. At a series of Village Plan Commission public meetings, both supporters and opponents touched upon the fact that the project would probably be racially integrated. Opponents also stressed zoning factors that pointed toward denial of MHDC's application: The location had always been zoned single-family, and the Village's apartment policy called for limited use of R-5 zoning, primarily as a buffer between single-family development and commercial or manufacturing districts, none of which adjoined the project's proposed location. After the Village denied rezoning, MHDC and individual minority respondents filed this suit for injunctive and declaratory relief, alleging that the denial was racially discriminatory and violated, inter alia, the Equal Protection Clause of the Fourteenth Amendment and the Fair Housing Act. The District Court held that the Village's rezoning denial was motivated not by racial discrimination but by a desire to protect property values and maintain the Village's zoning plan. Though approving those conclusions, the Court of Appeals reversed, finding that the "ultimate effect" of the rezoning denial was racially discriminatory and observing that the denial would disproportionately affect blacks, particularly in view of the fact that the general surburban area, though economically expanding, continued to be marked by residential segregation. Held:
1. MHDC and at least one individual respondent have standing to bring this action. Pp. 260-264.
(a) MHDC has met the constitutional standing requirements by showing injury fairly traceable to petitioners' acts. The challenged action of the Village stands as an absolute barrier to constructing the housing for which MHDC had contracted, a barrier which could be removed if injunctive relief were granted. MHDC, despite the contingency provisions in its contract, has suffered economic injury based upon the expenditures it made in support of its rezoning petition, as well as noneconomic injury from the defeat of its objective, embodied in its specific project, of making suitable low-cost housing available where such housing is scarce. Pp. 261-263.
(b) Whether MHDC has standing to assert the constitutional rights of its prospective minority tenants need not be decided, for at least one of the individual respondents, a Negro working in the Village and desirous of securing low-cost housing there but who now lives 20 miles away, has standing. Focusing on the specific MHDC project, he has adequately alleged an "actionable causal relationship" between the Village's zoning practices and his asserted injury. Warth v. Seldin, 422 U.S. 490, 507, 95 S.Ct. 2197, 2209, 45 L.Ed.2d 343. Pp. 263-264.
2. Proof of a racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause of the Fourteenth Amendment, and respondents failed to carry their burden of proving that such an intent or purpose was a motivating factor in the Village's rezoning decision. Pp. 264-271.
(a) Official action will not be held unconstitutional solely because it results in a racially disproportionate impact. "(Such) impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination." Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597. A racially discriminatory intent, as evidenced by such factors as disproportionate impact, the historical background of the challenged decision, the specific antecedent events, departures from normal procedures, and contemporary statements of the decisionmakers, must be shown. Pp. 264-268.
(b) The evidence does not warrant overturning the concurrent findings of both courts below that there was no proof warranting the conclusion that the Village's rezoning decision was racially motivated. Pp. 268-271.
3. The statutory question whether the rezoning decision violated the Fair Housing Act of 1968 was not decided by the Court of Appeals and should be considered on remand. P. 271.
517 F.2d 409, reversed and remanded.
Jack M. Siegel, Chicago, Ill., for petitioners.
F. Willis Caruso, Chicago, Ill., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
In 1971 respondent Metropolitan Housing Development Corporation (MHDC) applied to petitioner, the Village of Arlington Heights, Ill., for the rezoning of a 15-acre parcel from single-family to multiple-family classification. Using federal financial assistance, MHDC planned to build 190 clustered townhouse units for low- and moderate-income tenants. The Village denied the rezoning request. MHDC, joined by other plaintiffs who are also respondents here, brought suit in the United States District Court for the Northern District of Illinois.1 They alleged that the denial was racially discriminatory and that it violated, inter alia, the Fourteenth Amendment and the Fair Housing Act of 1968, 82 Stat. 81, 42 U.S.C. § 3601 et seq. Following a bench trial, the District Court entered judgment for the Village, 373 F.Supp. 208 (1974), and respondents appealed. The Court of Appeals for the Seventh Circuit reversed, finding that the "ultimate effect" of the denial was racially discriminatory, and that the refusal to rezone therefore violated the Fourteenth Amendment. 517 F.2d 409 (1975). We granted the Village's petition for certiorari, 423 U.S. 1030, 96 S.Ct. 560, 46 L.Ed.2d 404 (1975), and now reverse.
2
* Arlington Heights is a suburb of Chicago, located about 26 miles northwest of the downtown Loop area. Most of the land in Arlington Heights is zoned for detached single-family homes, and this is in fact the prevailing land use. The Village experienced substantial growth during the 1960's, but, like other communities in northwest Cook County, its population of racial minority groups remained quite low. According to the 1970 census, only 27 of the Village's 64,000 residents were black.
3
The Clerics of St. Viator, a religious order (Order), own an 80-acre parcel just east of the center of Arlington Heights. Part of the site is occupied by the Viatorian high school, and part by the Order's three-story novitiate building, which houses dormitories and a Montessori school. Much of the site, however, remains vacant. Since 1959, when the Village first adopted a zoning ordinance, all the land surrounding the Viatorian property has been zoned R-3, a single-family specification with relatively small minimum lot-size requirements. On three sides of the Viatorian land there are single-family homes just across a street; to the east the Viatorian property directly adjoins the backyards of other single-family homes.
4
The Order decided in 1970 to devote some of its land to low- and moderate-income housing. Investigation revealed that the most expeditious way to build such housing was to work through a nonprofit developer experienced in the use of federal housing subsidies under § 236 of the National Housing Act, 48 Stat. 1246, as added and amended, 12 U.S.C. § 1715z-1.2
5
MHDC is such a developer. It was organized in 1968 by several prominent Chicago citizens for the purpose of building low- and moderate-income housing throughout the Chicago area. In 1970 MHDC was in the process of building one § 236 development near Arlington Heights and already had provided some federally assisted housing on a smaller scale in other parts of the Chicago area.
6
After some negotiation, MHDC and the Order entered into a 99-year lease and an accompanying agreement of sale covering a 15-acre site in the southeast corner of the Viatorian property. MHDC became the lessee immediately, but the sale agreement was contingent upon MHDC's securing zoning clearances from the Village and § 236 housing assistance from the Federal Government. If MHDC proved unsuccessful in securing either, both the lease and the contract of sale would lapse. The agreement established a bargain purchase price of $300,000, low enough to comply with federal limitations governing land-acquisition costs for § 236 housing.
7
MHDC engaged an architect and proceeded with the project, to be known as Lincoln Green. The plans called for 20 two-story buildings with a total of 190 units, each unit having its own private entrance from outside. One hundred of the units would have a single bedroom, thought likely to attract elderly citizens. The remainder would have two, three, or four bedrooms. A large portion of the site would remain open, with shrubs and trees to screen the homes abutting the property to the east.
8
The planned development did not conform to the Village's zoning ordinance and could not be built unless Arlington Heights rezoned the parcel to R-5, its multiple-family housing classification. Accordingly, MHDC filed with the Village Plan Commission a petition for rezoning, accompanied by supporting materials describing the development and specifying that it would be subsidized under § 236. The materials made clear that one requirement under § 236 is an affirmative marketing plan designed to assure that a subsidized development is racially integrated. MHDC also submitted studies demonstrating the need for housing of this type and analyzing the probable impact of the development. To prepare for the hearings before the Plan Commission and to assure compliance with the Village building code, fire regulations, and related requirements, MHDC consulted with the Village staff for preliminary review of the development. The parties have stipulated that every change recommended during such consultations was incorporated into the plans.
9
During the spring of 1971, the Plan Commission considered the proposal at a series of three public meetings, which drew large crowds. Although many of those attending were quite vocal and demonstrative in opposition to Lincoln Green, a number of individuals and representatives of community groups spoke in support of rezoning. Some of the comments, both from opponents and supporters, addressed what was referred to as the "social issue" the desirability or undesirability of introducing at this location in Arlington Heights low- and moderate-income housing, housing that would probably be racially integrated.
10
Many of the opponents, however, focused on the zoning aspects of the petition, stressing two arguments. First, the area always had been zoned single-family, and the neighboring citizens had built or purchased there in reliance on that classification. Rezoning threatened to cause a measurable drop in property value for neighboring sites. Second, the Village's apartment policy, adopted by the Village Board in 1962 and amended in 1970, called for R-5 zoning primarily to serve as a buffer between single-family development and land uses thought incompatible, such as commercial or manufacturing districts. Lincoln Green did not meet this requirement, as it adjoined no commercial or manufacturing district.
11
At the close of the third meeting, the Plan Commission adopted a motion to recommend to the Village's Board of Trustees that it deny the request. The motion stated: "While the need for low and moderate income housing may exist in Arlington Heights or its environs, the Plan Commission would be derelict in recommending it at the proposed location." Two members voted against the motion and submitted a minority report, stressing that in their view the change to accommodate Lincoln Green represented "good zoning." The Village Board met on September 28, 1971, to consider MHDC's request and the recommendation of the Plan Commission. After a public hearing, the Board denied the rezoning by a 6-1 vote.
12
The following June MHDC and three Negro individuals filed this lawsuit against the Village, seeking declaratory and injunctive relief.3 A second nonprofit corporation and an individual of Mexican-American descent intervened as plaintiffs. The trial resulted in a judgment for petitioners. Assuming that MHDC had standing to bring the suit,4 the District Court held that the petitioners were not motivated by racial discrimination or intent to discriminate against low-income groups when they denied rezoning, but rather by a desire "to protect property values and the integrity of the Village's zoning plan." 373 F.Supp., at 211. The District Court concluded also that the denial would not have a racially discriminatory effect.
13
A divided Court of Appeals reversed. It first approved the District Court's finding that the defendants were motivated by a concern for the integrity of the zoning plan, rather than by racial discrimination. Deciding whether their refusal to rezone would have discriminatory effects was more complex. The court observed that the refusal would have a disproportionate impact on blacks. Based upon family income, blacks constituted 40% of those Chicago area residents who were eligible to become tenants of Lincoln Green, although they composed a far lower percentage of total area population. The court reasoned, however, that under our decision in James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971), such a disparity in racial impact alone does not call for strict scrutiny of a municipality's decision that prevents the construction of the low-cost housing.5
14
There was another level to the court's analysis of allegedly discriminatory results. Invoking language from Kennedy Park Homes Assn. v. City of Lackawanna, 436 F.2d 108, 112 (C.A.2 1971), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1970), the Court of Appeals ruled that the denial of rezoning must be examined in light of its "historical context and ultimate effect."6 517 F.2d, at 413. Northwest Cook County was enjoying rapid growth in employment opportunities and population, but it continued to exhibit a high degree of residential segregation. The court held that Arlington Heights could not simply ignore this problem. Indeed, it found that the Village had been "exploiting" the situation by allowing itself to become a nearly all white community. Id., at 414. The Village had no other current plans for building low- and moderate-income housing, and no other R-5 parcels in the Village were available to MHDC at an economically feasible price.
15
Against this background, the Court of Appeals ruled that the denial of the Lincoln Green proposal had racially discriminatory effects and could be tolerated only if it served compelling interests. Neither the buffer policy nor the desire to protect property values met this exacting standard. The court therefore concluded that the denial violated the Equal Protection Clause of the Fourteenth Amendment.
II
16
At the outset, petitioners challenge the respondents' standing to bring the suit. It is not clear that this challenge was pressed in the Court of Appeals, but since our jurisdiction to decide the case is implicated, Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969) (plurality opinion), we shall consider it.
17
In Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), a case similar in some respects to this one, we reviewed the constitutional limitations and prudential considerations that guide a court in determining a party's standing, and we need not repeat that discussion here. The essence of the standing question, in its constitutional dimension, is "whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' (as) to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Id., at 498-499, 95 S.Ct. at 2205, quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The plaintiff must show that he himself is injured by the challenged action of the defendant. The injury may be indirect, see United States v. SCRAP, 412 U.S. 669, 688, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973), but the complaint must indicate that the injury is indeed fairly traceable to the defendant's acts or omissions. Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925 - 1926, 48 L.Ed.2d 450 (1976); O'Shea v. Littleton, 414 U.S. 488, 498, 94 S.Ct. 669, 677, 38 L.Ed.2d 674 (1974); Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973).
A.
18
Here there can be little doubt that MHDC meets the constitutional standing requirements. The challenged action of the petitioners stands as an absolute barrier to constructing the housing MHDC had contracted to place on the Viatorian site. If MHDC secures the injunctive relief it seeks, that barrier will be removed. An injunction would not, of course, guarantee that Lincoln Green will be built. MHDC would still have to secure financing, qualify for federal subsidies,7 and carry through with construction. But all housing developments are subject to some extent to similar uncertainties. When a project is as detailed and specific as Lincoln Green, a court is not required to engage in undue speculation as a predicate for finding that the plaintiff has the requisite personal stake in the controversy. MHDC has shown an injury to itself that is "likely to be redressed by a favorable decision." Simon v. Eastern Ky. Welfare Rights Org., supra, 426 U.S., at 38, 96 S.Ct., at 1924.
19
Petitioners nonetheless appear to argue that MHDC lacks standing because it has suffered no economic injury. MHDC, they point out, is not the owner of the property in question. Its contract of purchase is contingent upon securing rezoning.8 MHDC owes the owners nothing if rezoning is denied.
20
We cannot accept petitioners' argument. In the first place, it is inaccurate to say that MHDC suffers no economic injury from a refusal to rezone, despite the contingency provisions in its contract. MHDC has expended thousands of dollars on the plans for Lincoln Green and on the studies submitted to the Village in support of the petition for rezoning. Unless rezoning is granted, many of these plans and studies will be worthless even if MHDC finds another site at an equally attractive price.
21
Petitioners' argument also misconceives our standing requirements. It has long been clear that economic injury is not the only kind of injury that can support a plaintiff's standing. United States v. SCRAP, supra, 412 U.S., at 686-687, 93 S.Ct., at 2415; Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972); Data Processing Service v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). MHDC is a nonprofit corporation. Its interest in building Lincoln Green stems not from a desire for economic gain, but rather from an interest in making suitable low-cost housing available in areas where such housing is scarce. This is not mere abstract concern about a problem of general interest. See Sierra Club v. Morton, supra, 405 U.S., at 739, 92 S.Ct., at 1368. The specific project MHDC intends to build, whether or not it will generate profits, provides that "essential dimension of specificity" that informs judicial decisionmaking. Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 221, 94 S.Ct. 2925, 2932, 41 L.Ed.2d 706 (1974).
B
22
Clearly MHDC has met the constitutional requirements, and it therefore has standing to assert its own rights. Foremost among them is MHDC's right to be free of arbitrary or irrational zoning actions. See Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928); Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974). But the heart of this litigation has never been the claim that the Village's decision fails the generous Euclid test, recently reaffirmed in Belle Terre. Instead it has been the claim that the Village's refusal to rezone discriminates against racial minorities in violation of the Fourteenth Amendment. As a corporation, MHDC has no racial identity and cannot be the direct target of the petitioners' alleged discrimination. In the ordinary case, a party is denied standing to assert the rights of third persons. Warth v. Seldin, 422 U.S., at 499, 95 S.Ct., at 2205. But we need not decide whether the circumstances of this case would justify departure from that prudential limitation and permit MHDC to assert the constitutional rights of its prospective minority tenants. See Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); cf. Sullivan v. Little Hunting Park, 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969); Buchanan v. Warley, 245 U.S. 60, 72-73, 38 S.Ct. 16, 17, 62 L.Ed. 149 (1917). For we have at least one individual plaintiff who has demonstrated standing to assert these rights as his own.9
23
Respondent Ransom, a Negro, works at the Honeywell factory in Arlington Heights and lives approximately 20 miles away in Evanston in a 5-room house with his mother and his son. The complaint alleged that he seeks and would qualify for the housing MHDC wants to build in Arlington Heights. Ransom testified at trial that if Lincoln Green were built he would probably move there, since it is closer to his job.
24
The injury Ransom asserts is that his quest for housing nearer his employment has been thwarted by official action that is racially discriminatory. If a court grants the relief he seeks, there is at least a "substantial probability," Warth v. Seldin, supra, 422 U.S., at 504, 95 S.Ct., at 2208, that the Lincoln Green project will materialize, affording Ransom the housing opportunity he desires in Arlington Heights. His is not a generalized grievance. Instead, as we suggested in Warth, supra, at 507, 508 n. 18, 95 S.Ct., at 2210, it focuses on a particular project and is not dependent on speculation about the possible actions of third parties not before the court. See id., at 505, 95 S.Ct., at 2208; Simon v. Eastern Ky. Welfare Rights Org., 426 U.S., at 41-42, 96 S.Ct., at 1925 - 1926. Unlike the individual plaintiffs in Warth, Ransom has adequately averred an "actionable causal relationship" between Arlington Heights' zoning practices and his asserted injury. Warth v. Seldin, supra, 422 U.S., at 507, 95 S.Ct., at 2209. We therefore proceed to the merits.
III
25
Our decision last Term in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), made it clear that official action will not be held unconstitutional solely because it results in a racially disproportionate impact. "Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination." Id., at 242, 96 S.Ct., at 2049. Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. Although some contrary indications may be drawn from some of our cases,10 the holding in Davis reaffirmed a principle well established in a variety of contexts. E. g., Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 208, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548 (1973) (schools); Wright v. Rockefeller, 376 U.S. 52, 56-57, 84 S.Ct. 603, 605, 11 L.Ed.2d 512 (1964) (election districting); Akins v. Texas, 325 U.S. 398, 403-404, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692 (1945) (jury selection).
26
Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the "dominant" or "primary" one.11 In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified.12
27
Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action whether it "bears more heavily on one race than another," Washington v. Davis, supra, 426 U.S., at 242, 96 S.Ct., at 2049 may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915); Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). The evidentiary inquiry is then relatively easy.13 But such cases are rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative,14 and the Court must look to other evidence.15
28
The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. See Lane v. Wilson, supra; Griffin v. School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Davis v. Schnell, 81 F.Supp. 872 (S.D.Ala.), aff'd per curiam, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093 (1949); cf. Keyes v. School Dist. No. 1, Denver, Colo., supra, 413 U.S., at 207, 93 S.Ct., at 2696. The specific sequence of events leading up the challenged decision also may shed some light on the decisionmaker's purposes. Reitman v. Mulkey, 387 U.S. 369, 373-376, 87 S.Ct. 1627, 1629-1631, 18 L.Ed.2d 830 (1967); Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936). For example, if the property involved here always had been zoned R-5 but suddenly was changed to R-3 when the town learned of MHDC's plans to erect integrated housing,16 we would have a far different case. Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.17
29
The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports. In some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege. See Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039 (1974); 8 J. Wigmore, Evidence § 2371 (McNaughton rev.ed. 1961).18
30
The foregoing summary identifies, without purporting to be exhaustive, subjects of proper inquiry in determining whether racially discriminatory intent existed. With these in mind, we now address the case before us.
IV
31
This case was tried in the District Court and reviewed in the Court of Appeals before our decision in Washington v. Davis, supra. The respondents proceeded on the erroneous theory that the Village's refusal to rezone carried a racially discriminatory effect and was, without more, unconstitutional. But both courts below understood that at least part of their function was to examine the purpose underlying the decision. In making its findings on this issue, the District Court noted that some of the opponents of Lincoln Green who spoke at the various hearings might have been motivated by opposition to minority groups. The court held, however, that the evidence "does not warrant the conclusion that this motivated the defendants." 373 F.Supp., at 211.
32
On appeal the Court of Appeals focused primarily on respondents' claim that the Village's buffer policy had not been consistently applied and was being invoked with a strictness here that could only demonstrate some other underlying motive. The court concluded that the buffer policy, though not always applied with perfect consistency, had on several occasions formed the basis for the Board's decision to deny other rezoning proposals. "The evidence does not necessitate a finding that Arlington Heights administered this policy in a discriminatory manner." 517 F.2d, at 412. The Court of Appeals therefore approved the District Court's findings concerning the Village's purposes in denying rezoning to MHDC.
33
We also have reviewed the evidence. The impact of the Village's decision does arguably bear more heavily on racial minorities. Minorities constitute 18% of the Chicago area population, and 40% of the income groups said to be eligible for Lincoln Green. But there is little about the sequence of events leading up to the decision that would spark suspicion. The area around the Viatorian property has been zoned R-3 since 1959, the year when Arlington Heights first adopted a zoning map. Single-family homes surround the 80-acre site, and the Village is undeniably committed to single-family homes as its dominant residential land use. The rezoning request progressed according to the usual procedures.19 The Plan Commission even scheduled two additional hearings, at least in part to accommodate MHDC and permit it to supplement its presentation with answers to questions generated at the first hearing.
34
The statements by the Plan Commission and Village Board members, as reflected in the official minutes, focused almost exclusively on the zoning aspects of the MHDC petition, and the zoning factors on which they relied are not novel criteria in the Village's rezoning decisions. There is no reason to doubt that there has been reliance by some neighboring property owners on the maintenance of single-family zoning in the vicinity. The Village originally adopted its buffer policy long before MHDC entered the picture and has applied the policy too consistently for us to infer discriminatory purpose from its application in this case. Finally, MHDC called one member of the Village Board to the stand at trial. Nothing in her testimony supports an inference of invidious purpose.20
35
In sum, the evidence does not warrant overturning the concurrent findings of both courts below. Respondents simply failed to carry their burden of proving that discriminatory purpose was a motivating factor in the Village's decision.21 This conclusion ends the constitutional inquiry. The court of Appeals' further finding that the Village's decision carried a discriminatory "ultimate effect" is without independent constitutional significance.
V
36
Respondents' complaint also alleged that the refusal to rezone violated the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq. They continue to urge here that a zoning decision made by a public body may, and that petitioners' action did, violate § 3604 or § 3617. The Court of Appeals, however, proceeding in a somewhat unorthodox fashion, did not decide the statutory question. We remand the case for further consideration of respondents' statutory claims.
37
Reversed and remanded.
38
Mr. Justice STEVENS took no part in the consideration or decision of this case.
39
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, concurring in part and dissenting in part.
40
I concur in Parts I-III of the Court's opinion. However, I believe the proper result would be to remand this entire case to the Court of Appeals for further proceedings consistent with Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and today's opinion. The Court of Appeals is better situated than this Court both to reassess the significance of the evidence developed below in light of the standards we have set forth and to determine whether the interests of justice require further District Court proceedings directed toward those standards.
41
Mr. Justice WHITE, dissenting.
42
The Court reverses the judgment of the Court of Appeals because it finds, after re-examination of the evidence supporting the concurrent findings below, that "(r)espondents . . . failed to carry their burden of proving that discriminatory purpose was a motivating factor in the Village's decision." Ante, p. 270. The Court reaches this result by interpreting our decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and applying it to this case, notwithstanding that the Court of Appeals rendered its decision in this case before Washington v. Davis was handed down, and thus did not have the benefit of our decision when it found a Fourteenth Amendment violation.
43
The Court gives no reason for its failure to follow our usual practice in this situation of vacating the judgment below and remanding in order to permit the lower court to reconsider its ruling in light of our intervening decision. The Court's articulation of a legal standard nowhere mentioned in Davis indicates that it feels that the application of Davis to these facts calls for substantial analysis. If this is true, we would do better to allow the Court of Appeals to attempt that analysis in the first instance. Given that the Court deems it necessary to re-examine the evidence in the case in light of the legal standard it adopts, a remand is especially appropriate. As the cases relied upon by the Court indicate, the primary function of this Court is not to review the evidence supporting findings of the lower courts. See, e. g., Wright v. Rockefeller, 376 U.S. 52, 56-57, 84 S.Ct. 603, 605, 11 L.Ed.2d 512 (1964); Akins v. Texas, 325 U.S. 398, 402, 65 S.Ct. 1276, 1278, 89 L.Ed. 1692 (1945). A further justification for remanding on the constitutional issue is that a remand is required in any event on respondents' Fair Housing Act claim, 42 U.S.C. § 3601 et seq., not yet addressed by the Court of Appeals. While conceding that a remand is necessary because of the Court of Appeals' "unorthodox" approach of deciding the constitutional issue without reaching the statutory claim, ante, at 271, the Court refuses to allow the Court of Appeals to reconsider its constitutional holding in light of Davis should it become necessary to reach that issue.
44
Even if I were convinced that it was proper for the Court to reverse the judgment below on the basis of an intervening decision of this Court and after a re-examination of concurrent findings of fact below, I believe it is wholly unnecessary for the Court to embark on a lengthy discussion of the standard for proving the racially discriminatory purpose required by Davis for a Fourteenth Amendment violation. The District Court found that the Village was motivated "by a legitimate desire to protect property values and the integrity of the Village's zoning plan." The Court of Appeals accepted this finding as not clearly erroneous, and the Court quite properly refuses to overturn it on review here. There is thus no need for this Court to list various "evidentiary sources" or "subjects of proper inquiry" in determining whether a racially discriminatory purpose existed.
45
I would vacate the judgment of the Court of Appeals and remand the case for consideration of the statutory issue and, if necessary, for consideration of the constitutional issue in light of Washington v. Davis.
1
Respondents named as defendants both the Village and a number of its officials, sued in their official capacity. The latter were the Mayor, the Village Manager, the Director of Building and Zoning, and the entire Village Board of Trustees. For convenience, we will occasionally refer to all the petitioners collectively as "the Village."
2
Section 236 provides for "interest reduction payments" to owners of rental housing projects which meet the Act's requirements, if the savings are passed on to the tenants in accordance with a rather complex formula. Qualifying owners effectively pay 1% interest on money borrowed to construct, rehabilitate, or purchase their properties. (Section 236 has been amended frequently in minor respects since this litigation began. See 12 U.S.C. § 1715z-1 (1970 ed., Supp. V), and the Housing Authorization Act of 1976, § 4, 90 Stat. 1070.)
New commitments under § 236 were suspended in 1973 by executive decision, and they have not been revived. Projects which formerly could claim § 236 assistance, however, will now generally be eligible for aid under § 8 of the United States Housing Act of 1937, as amended by § 201(a) of the Housing and Community Development Act of 1974, 42 U.S.C. § 1437f (1970 ed., Supp. V), and by the Housing Authorization Act of 1976, § 2, 90 Stat. 1068. Under the § 8 program, the Department of Housing and Urban Development contracts to pay
the owner of the housing units a sum which will make up the difference between a fair market rent for the area and the amount contributed by the low-income tenant. The eligible tenant family pays between 15% and 25% of its gross income for rent. Respondents indicated at oral argument that, despite the demise of the § 236 program, construction of the MHDC project could proceed under § 8 if zoning clearance is now granted.
3
The individual plaintiffs sought certification of the action as a class action pursuant to Fed.Rule Civ.Proc. 23 but the District Court declined to certify. 373 F.Supp. 208, 209 (1974).
4
A different District Judge had heard early motions in the case. He had sustained the complaint against a motion to dismiss for lack of standing, and the judge who finally decided the case said he found "no need to reexamine (the predecessor judge's) conclusions" in this respect. Ibid.
5
Nor is there reason to subject the Village's action to more stringent review simply because it involves respondents' interest in securing housing. Lindsey v. Normet, 405 U.S. 56, 73-74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 (1972). See generally San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 18-39, 93 S.Ct. 1278, 1288-1300, 36 L.Ed.2d 16 (1973).
6
This language apparently derived from our decision in Reitman v. Mulkey, 387 U.S. 369, 373, 87 S.Ct. 1627, 1629, 18 L.Ed.2d 830 (1967) (quoting from the opinion of the California Supreme Court in the case then under review).
7
Petitioners suggest that the suspension of the § 236 housing-assistance program makes it impossible for MHDC to carry out its proposed project and therefore deprives MHDC of standing. The District Court also expressed doubts about MHDC's position in the case in light of the suspension. 373 F.Supp., at 211. Whether termination of all available assistance programs would preclude standing is not a matter we need to decide, in view of the current likelihood that subsidies may be secured under § 8 of the United States Housing Act of 1937, as amended by the Housing and Community Development Act of 1974. See n. 2, supra.
8
Petitioners contend that MHDC lacks standing to pursue its claim here because a contract purchaser whose contract is contingent upon rezoning cannot contest a zoning decision in the Illinois courts. Under the law of Illinois, only the owner of the property has standing to pursue such an action. Clark Oil & Refining Corp. v. City of Evanston, 23 Ill.2d 48, 177 N.E.2d 191 (1961); but see Solomon v. City of Evanston, 29 Ill.App.3d 782, 331 N.E.2d 380 (1975).
State law of standing, however, does not govern such determinations in the federal courts. The constitutional and prudential considerations canvassed at length in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), respond to concerns that are peculiarly federal in nature. Illinois may choose to close its courts to applicants for rezoning unless they have an interest more direct than MHDC's, but this choice does not necessarily disqualify MHDC from seeking relief in federal courts for an asserted injury to its federal rights.
9
Because of the presence of this plaintiff, we need not consider whether the other individual and corporate plaintiffs have standing to maintain the suit.
10
Palmer v. Thompson, 403 U.S. 217, 225, 91 S.Ct. 1940, 1945, 29 L.Ed.2d 438 (1971); Wright v. Council of City of Emporia, 407 U.S. 451, 461-462, 92 S.Ct. 2196, 2202-2203, 33 L.Ed.2d 51 (1972); cf. United States v. O'Brien, 391 U.S. 367, 381-386, 88 S.Ct. 1673, 1681-1684, 20 L.Ed.2d 672 (1968). See discussion in Washington v. Davis, 426 U.S., at 242-244, 96 S.Ct., at 2049-2050.
11
In McGinnis v. Royster, 410 U.S. 263, 276-277, 93 S.Ct. 1055, 1063, 35 L.Ed.2d 282 (1973), in a somewhat different context, we observed:
"The search for legislative purpose is often elusive enough, Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), without a requirement that primacy be ascertained. Legislation is frequently multipurposed: the removal of even a 'subordinate' purpose may shift altogether the consensus of legislative judgment supporting the statute."
12
For a scholarly discussion of legislative motivation, see Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 Sup.Ct.Rev. 95, 116-118.
13
Several of our jury-selection cases fall into this category. Because of the nature of the jury-selection task, however, we have permitted a finding of constitutional violation even when the statistical pattern does not approach the extremes of Yick Wo or Gomillion. See, e. g., Turner v. Fouche, 396 U.S. 346, 359, 90 S.Ct. 532, 539, 24 L.Ed.2d 567 (1970); Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523, 525, 19 L.Ed.2d 634 (1967).
14
This is not to say that a consistent pattern of official racial discrimination is a necessary predicate to a violation of the Equal Protection Clause. A single invidiously discriminatory governmental act in the exercise of the zoning power as elsewhere would not necessarily be immunized by the absence of such discrimination in the making of other comparable decisions. See City of Richmond v. United States, 422 U.S. 358, 378, 95 S.Ct. 2296, 2307, 45 L.Ed.2d 245 (1975).
15
In many instances, to recognize the limited probative value of disproportionate impact is merely to acknowledge the "heterogeneity" of the Nation's population. Jefferson v. Hackney, 406 U.S. 535, 548, 92 S.Ct. 1724, 1732, 32 L.Ed.2d 285 (1972); see also Washington v. Davis, supra, 426 U.S., at 248, 96 S.Ct., at 2051.
16
See, e. g., Progress Development Corp. v. Mitchell, 286 F.2d 222 (C.A.7 1961) (park board allegedly condemned plaintiffs' land for a park upon learning that the homes plaintiffs were erecting there would be sold under a marketing plan designed to assure integration); Kennedy Park Homes Assn. v. City of Lackawanna, 436 F.2d 108 (C.A.2 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971) (town declared moratorium on new subdivisions and rezoned area for parkland shortly after learning of plaintiffs' plans to build low income housing). To the extent that the decision in Kennedy Park Homes rested solely on a finding of discriminatory impact, we have indicated our disagreement. Washington v. Davis, supra, 426 U.S., at 244-245, 96 S.Ct., at 2050.
17
See Dailey v. City of Lawton, 425 F.2d 1037 (C.A.10 1970). The plaintiffs in Dailey planned to build low-income housing on the site of a former school that they had purchased. The city refused to rezone the land from PF, its public facilities classification, to R-4, high-density residential. All the surrounding area was zoned R-4, and both the present and the former planning director for the city testified that there was no reason "from a zoning standpoint" why the land should not be classified R-4. Based on this and other evidence, the Court of Appeals ruled that "the record sustains the (District Court's) holding of racial motivation and of arbitrary and unreasonable action." Id., at 1040.
18
This Court has recognized, ever since Fletcher v. Peck, 6 Cranch 87, 130-131, 3 L.Ed. 162 (1810), that judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government. Placing a decisionmaker on the stand is therefore "usually to be avoided." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). The problems involved have prompted a good deal of scholarly commentary. See Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341, 356-361 (1949); A. Bickel, The Least Dangerous Branch 208-221 (1962); Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205 (1970); Brest, supra, n. 12.
19
Respondents have made much of one apparent procedural departure. The parties stipulated that the Village Planner, the staff member whose primary responsibility covered zoning and planning matters, was never asked for his written or oral opinion of the rezoning request. The omission does seem curious, but respondents failed to prove at trial what role the Planner customarily played in rezoning decisions, or whether his opinion would be relevant to respondents' claims.
20
Respondents complain that the District Court unduly limited their efforts to prove that the Village Board acted for discriminatory purposes, since it forbade questioning Board members about their motivation at the time they cast their votes. We perceive no abuse of discretion in the circumstances of this case, even if such an inquiry into motivation would otherwise have been proper. See n. 18, supra. Respondents were allowed, both during the discovery phase and at trial, to question Board members fully about materials and information available to them at the time of decision. In light of respondents' repeated insistence that it was effect and not motivation which would make out a constitutional violation, the District Court's action was not improper.
21
Proof that the decision by the Village was motivated in part by a racially discriminatory purpose would not necessarily have required invalidation of the challenged decision. Such proof would, however, have shifted to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered. If this were established, the complaining party in a case of this kind no longer fairly could attribute the injury complained of to improper consideration of a discriminatory purpose. In such circumstances, there would be no justification for judicial interference with the challenged decision. But in this case respondents failed to make the required threshold showing. See Mt. Healthy City School Dist. Bd. of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471.
| 12
|
429 U.S. 288
97 S.Ct. 549
50 L.Ed.2d 485
John A. KNEBEL, Secretary of Agriculture, Appellant,v.Karen HEIN et al. Kevin J. BURNS, etc., et al., Appellants, v. Karen HEIN et al.
Nos. 75-1261 and 75-1355.
Argued Nov. 29, 1976.
Decided Jan. 11, 1977.
Syllabus
Federal and state regulations that disallow a deduction for transportation expenses in connection with a job training program for purposes of computing the income of food stamp recipients held not to conflict with the Food Stamp Act of 1964 or to deny equal protection or due process. Pp. 292-297.
(a) Though under the Act's broad delegation of authority, the Secretary of Agriculture might have defined income in a variety of ways, his decision to adopt a definition of income including wages, welfare payments, training allowances, and other monetary receipts, with a 10% standardized deduction of the wages or training allowance (including tuition grants and travel allowances), and only a few specific deductions, is a valid exercise of his statutory authority. The availability of alternatives does not render the Secretary's choice invalid. Pp. 293-295.
(b) Allowing a specific deduction for items such as transportation expenses would significantly increase administrative costs as well as risks of disparate treatment. P. 295.
(c) Nothing in the Act requires that deductions include all necessary nonfood expenditures. P. 295-296.
(d) The regulations embody no conclusive presumption; they merely represent the reasonable judgments that (1) recipients of state travel allowances should be treated like other trainees and wage earners, and (2) the standard 10% deduction, coupled with the 30% ceiling on coupon purchase prices, provides an acceptable mechanism for dealing with ordinary expenses such as commuting. Pp. 296-297.
D.C., 402 F.Supp. 398, reversed.
Stephen L. Urbanczyk, Dept. of Justice, Washington, D.C., for the appellant Secretary of Agriculture, pro hac vice, by special leave of Court, by Lorna Lawhead Williams, Des Moines, Iowa, for appellants, Kevin J. Burns, etc., and others.
Robert D. Bartels, Iowa City, Iowa, for appellees.
Mr. Justice STEVENS delivered the opinion of the Court.
1
Under the program administered by the Secretary of Agriculture and cooperating state agencies pursuant to the Food Stamp Act of 1964, 78 Stat. 703, 7 U.S.C. § 2011 et seq. (1970 ed. and Supp. V), certain low-income households are entitled to purchase food coupons at a discount. The price an eligible household must pay for food stamps is determined, in part, by its "income" as defined in the applicable federal and state regulations. Under those regulations a transportation allowance, which appellee receives from the State of Iowa and uses to defray the cost of commuting to a nurses' training program, is treated as "income." The questions presented on this appeal are whether those regulations are authorized by the statute and, if so, whether they are constitutional.
2
Appellee Hein, a divorced woman with custody of two children, is the head of a household receiving assistance.1 Prior to September 1972, she paid only $46 for food stamps with a retail value of $92. Thereafter she received a grant from the State which paid her tuition at a nurses' training school, plus a transportation allowance of $44 per month.2 The actual monthly expense of commuting between her residence in Muscatine, Iowa, and the school in Davenport amounted to at least $44.3 The allowance nevertheless increased the "income" which determined the price of her food stamps,4 resulting in a $12 price increase.
3
After exhausting state administrative remedies, appellee filed a class action in the United States District Court for the Southern District of Iowa seeking to enjoin the enforcement of the Iowa regulations requiring that transportation allowances be included in income. Because the constitutionality of the regulations was challenged, a three-judge court was convened pursuant to 28 U.S.C. § 2281.5 The District Court originally held the Iowa regulation invalid as inconsistent with the regulations of the Secretary of Agriculture.6 371 F.Supp. 1091 (1974). While the State's appeal was pending in this Court, the Secretary promulgated a clarifying amendment eliminating the basis for the District Court's holding.7 We therefore vacated the original judgment, 419 U.S. 989, 95 S.Ct. 297, 42 L.Ed.2d 260.
4
On remand, the Secretary of Agriculture was joined as an additional defendant. The District Court then held both the state and the federal regulations invalid. 402 F.Supp. 398 (1975). The court could identify no rational basis for treating as income a training allowance which is fully expended for its intended purpose. Consequently, the court reasoned, the regulation did not implement the statutory objective of providing adequate nutrition for low-income families. Since the allowance did not increase appellee's "food purchasing power," the District Court felt that it was totally irrational for the allowance to increase the cost of appellee's food stamps. This analysis led to the conclusion that the regulation conflicted with the Food Stamp Act and discriminated against recipients of transportation allowances in violation of the equal protection guarantee explicit in the Fourteenth Amendment and implicit in the Due Process Clause of the Fifth Amendment.8
5
We are persuaded that the statute authorized the Secretary and the State of Iowa to issue the challenged regulations and that the regulations are constitutional.
6
The salutary purpose and the broad outlines of the federal food stamp program are well known.9 The Food Stamp Act authorizes the Secretary to "formulate and administer a food stamp program" which will provide an eligible household "an opportunity to obtain a nutritionally adequate diet," 7 U.S.C. § 2013(a). He is to "prescribe the amounts of household income and other financial resources, including both liquid and nonliquid assets, to be used as criteria of eligibility," 7 U.S.C. § 2014(b) (1970 ed., Supp. V). The charge for the coupons is to "represent a reasonable investment on the part of the household, but in no event more than 30 per centum of the household's income . . . ." § 2016(b). Finally, the Secretary "shall issue such regulations, not inconsistent with this chapter, as he deems necessary or appropriate for the effective and efficient administration of the food stamp program." § 2013(c).
7
Under the statute's broad delegation of authority, the Secretary might have defined income in a variety of ways. He might, for example, have treated wages differently from training allowances. He decided, however, to adopt a definition of income which includes wages, welfare payments, training allowances, and most other monetary receipts.10 Only a few specific deductions are allowed.11 These deductions do not include any itemized deduction for commuting expenses of either students or workers. Instead, there is a standardized deduction of 10% of the wages or training allowance (including tuition grants and travel allowances), which is intended to cover incidental expenses.12
8
The District Court was correct that the regulations operate somewhat unfairly in appellee's case. Nevertheless, we are satisfied that they are the product of a valid exercise of the Secretary's statutory authority. Perhaps it might have been more equitable to allow a deduction for all commuting expenses,13 or for the expenses of commuting to a training program, or as the order of the District Court provides just for such expenses covered by state transportation allowances. But the availability of alternatives does not render the Secretary's choice invalid.14 Moreover, a plainly acceptable reason exists for rejecting each of these possible alternatives.
9
Allowing a deduction for all transportation expenses would create significant administrative costs as well as risks of disparate treatment.15 Disparate treatment of trainees and wage earners could be criticized as unfairly discriminating against the worker. Similar criticism can be leveled against the order entered by the District Court in this case, under which members of the class would fare better than workers with equally low receipts and equally high expenses.
10
The District Court's primary reason for invalidating the regulations was its view that transportation grants do not increase food purchasing power.16 But the grant does give a household more food purchasing power than another household which receives no grant but incurs similar nondeductible expenses related to training or employment. Moreover, nothing in the statute requires that deductions include all necessary nonfood expenditures. On the contrary, the requirement in § 2016(b) that the price of the food stamps shall not exceed 30% of the household's income, assumes that 70% of that income may be expended on nonfood necessities.17 Thus, there is a built-in allowance for necessary expenses beyond the specific deductions.18
11
We conclude that the federal regulations defining income were reasonably adopted by the Secretary in the performance of his statutory duty to "formulate and administer a food stamp program" and are therefore within the Secretary's statutory authority. Since there is no question about the constitutionality of the statute itself, the implementation of the statutory purpose provides a sufficient justification for both the federal regulations and the parallel state regulations to avoid any violation of equal protection guarantees. See, e. g., Weinberger v. Salfi, 422 U.S. 749, 768-770, 95 S.Ct. 2457, 2468-2469, 45 L.Ed.2d 522; Mathews v. de Castro, 429 U.S. 181, at 185, 97 S.Ct. 431, at 434, 50 L.Ed.2d 389 (1976). Nor do the regulations embody any conclusive presumption. They merely represent two reasonable judgments: first, that recipients of state travel allowances should be treated like other trainees and like wage earners; and second, that the standard 10% deduction, coupled with the 30% ceiling on coupon purchase prices, provides an acceptable mechanism for dealing with ordinary expenses such as commuting. The Constitution requires no more. See Salfi, supra, 422 U.S. at 771-777, 95 S.Ct. at 2469-2473.
12
Reversed.
1
It was stipulated that prior to November 28, 1973, Ms. Hein had no savings and only the following elements of income:
"a. $28.75 a month rent from a house in which she owns a part interest;
"b. $220 ADC;
"c. $44 Work and Training Allowance; and
"d. $36 food stamp bonus." App. 24-25.
2
This assistance was granted under the Iowa Work and Training Program, authorized by Iowa Code Ann. §§ 249C.1, et seq. (Supp.1976). The program is partially funded by the State and partially by the Federal Government. Such funding is now provided under Title XX of the Social Security Act, 42 U.S.C. § 1397a et seq. (1970 ed., Supp. V).
3
The record is actually somewhat unclear on this point. However, the District Court construed a stipulation regarding appellee's "allowance for necessary commuting" as indicating that she actually was required to spend that amount. For purposes of decision, we accept the District Court's construction. It should be noted, however, that if appellee was a full-time student, she would receive the full $44 even if her actual expenses were less. If she was a part-time student, she would be reimbursed on the basis of mileage, up to a maximum of $44 per month. The record does not disclose whether she was a full-time or part-time student.
4
Under the regulations the tuition payment and the transportation allowance were both added to income. Then, an amount equal to the full tuition cost, plus 10% of the tuition payment and 10% of the transportation allowance, was deducted from income. The record does not disclose the tuition cost, or whether the proper deduction of 10% of that amount was made.
5
The District Court defined the class represented by appellee to include all persons receiving transportation allowances pursuant to individual education and training plans whose allowances were included in, and not deducted from, income for purposes of determining the price they had to pay for food stamps. 371 F.Supp. 1091, 1093 n. 1 (1974).
6
Under 7 U.S.C. § 2014, state "plans of operation" submitted to the Secretary are not to be approved "unless the standards of eligibility meet those established by the Secretary." The Secretary's regulations set out the standards of eligibility which must be applied by the state agency. 7 CFR § 271.3(c) (1976). The validity of the state regulations is at issue because they formed the direct basis for the change in appellee's food stamp price; the federal regulations are challenged because they now authorize the state regulations. See n. 7, infra.
7
The clarifying amendment specifically precluded "deductions . . . for any other educational expenses such as . . . transportation." 7 CFR § 271.3(c)(1)(iii)(f) (1976).
8
The District Court ordered the defendants to cease including in income "any amount received . . . as reimbursement for necessary commuting expenses, pursuant to an Individual Education and Training Plan, unless such amount is deducted from such person's monthly net income in determining such person's adjusted net income." 402 F.Supp. 398, 408 (1975). The court also ordered defendants to recompute the amounts which members of the class should have paid for food stamps and to allow them a credit against future purchases in the amount of the past overcharge.
9
"The federal food stamp program was established in 1964 in an effort to alleviate hunger and malnutrition among the more needy segments of our society. 7 U.S.C. § 2011. Eligibility for participation in the program is determined on a household rather than an individual basis. 7 CFR § 271.3(a). An eligible household purchases sufficient food stamps to provide that household with a nutritionally adequate diet. The household pays for the stamps at a reduced rate based upon its size and cumulative income. The food stamps are then used to purchase food at retail stores, and the Government redeems the stamps at face value, thereby paying the difference between the actual cost of the food and the amount paid by the household for the stamps. See 7 U.S.C. §§ 2013(a), 2016, 2025(a)." United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 529-530, 93 S.Ct. 2821, 2823, 37 L.Ed.2d 782.
10
The regulation provides, in part, that income includes:
"(a ) All compensation for services performed as an employee . . . ."
"(f ) Payments received from federally aided public assistance programs, general assistance programs, or other assistance programs based on need;
"(g ) Payments received from Government-sponsored programs such as . . . the Work Incentive Program, or Manpower Training Program . . . ."
"(i ) Cash gifts or awards . . . for support, maintenance, or the expenses of education . . . ."
"(l ) Rents, dividends, interest, royalties, and all other payments from any source whatever which may be construed to be a gain or benefit . . . ." 7 CFR § 271.3(c)(1)(i) (1976).
11
The deductions which are relevant for present purposes are these:
"(a ) Ten per centum of income from compensation for services performed as an employee or training allowance not to exceed $30 per household per month. This deduction shall be made before the following deductions . . . ."
"(d ) The payments necessary for the care of a child or other persons when necessary for a household member to accept or continue employment, or training or education which is preparatory for employment . . . ."
"(f ) Tuition and mandatory fees assessed by educational institutions (no deductions shall be made for any other education expenses such as, but not limited to, the expense of books, school supplies, meals at school, and transportation)." 7 CFR § 271.3(c)(1)(iii) (1976).
These regulations have undergone change during the course of this litigation. The express exclusion of transportation expenses as a possible educational deduction was added in response to the District Court's holding at a prior stage of the litigation that such a deduction was required by the regulations. See supra, at 290-291. More recently, the system of itemized deductions set forth in the text was replaced by a standardized deduction for all households. 41 Fed.Reg. 18788 (1976). We are told that enforcement of the new regulations has been enjoined. Brief for Appellant in No. 75-1261, 5 n. 3. This case would not become moot if the new regulations go into effect, because of the compensatory relief ordered by the District Court. See n. 8, supra.
12
7 CFR § 271.3(c)(1)(iii)(a ) (1976). A separate deduction is allowed for job- or training-related child-care expenses. 7 CFR § 271.3(c)(1)(iii)(d ) (1976).
13
Deductions for such incidental expenses are allowed in calculating income from self-employment. See 7 CFR § 271.3(c)(1)(i)(b ) (1976). Appellee does not contend that the Secretary is required to take this approach with respect to wage earners. The statute before us, unlike that considered in Shea v. Vialpando, 416 U.S. 251, 94 S.Ct. 1746, 40 L.Ed.2d 120, contains no indication that Congress meant to require individualized consideration of employment-related expenses. Given that the treatment of wage earners is valid, it follows that similar treatment of trainees is valid.
14
The Court's recent comment on a regulatory choice made by the Federal Reserve Board in its administration of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., is relevant. In Mourning v. Family Publications Serv., Inc., 411 U.S. 356, 371-372, 93 S.Ct. 1652, 1662, 36 L.Ed.2d 318, the Court stated:
"That some other remedial provision might be preferable is irrelevant. We have consistently held that where reasonable minds may differ as to which of several remedial measures should be chosen, courts should defer to the informed experience and judgment of the agency to whom Congress delegated appropriate authority. Northwestern Co. v. FPC, 321 U.S. 119, 124, 64 S.Ct. 451, 453, 88 L.Ed. 596 (1944); National Broadcasting Co. v. United States, 319 U.S. 190, 224, 63 S.Ct. 997, 1013, 87 L.Ed. 1344 (1943); American Telephone & Telegraph Co. v. United States, 299 U.S. 232, 236, 57 S.Ct. 170, 172, 81 L.Ed. 142 (1936)."
15
The record includes a letter dated March 11, 1974, from the Deputy General Counsel of the Department of Agriculture explaining the reasoning underlying a portion of the regulations. He stated:
"When these regulations were originally under consideration, it was administratively determined that tuition and mandatory fees are readily determinable, are uniform for all students, and are the primary costs of education (particularly college education) over and above a student's ordinary costs of living. It was also determined that the administrative burden of determining and verifying the expenses for the infinite variety of other outlays which may be incurred for education would be undue. Further, these other expenses, because of personal preference or otherwise, vary greatly from person to person and thus from household to household."
The fact that the Internal Revenue Code does not allow a deduction from income for commuting expenses lends support to the view that there is some reasonable basis for the Secretary's judgment in formulating these regulations. See Commissioner v. Flowers, 326 U.S. 465, 66 S.Ct. 250, 90 L.Ed. 203.
16
For some full-time students who are members of the class this reasoning rests on a faulty premise; for them, the grant may exceed actual transportation expenses.
17
We are informed that the "average purchase requirement for a food stamp household is now 24 percent of net income," Jurisdictional Statement in No. 75-1261 pp. 10-11, n. 3. See also 7 CFR § 271.10, App. A (1976).
18
The District Court also believed that an exclusion from income was required by what it perceived to be the Act's policy favoring education. This policy was thought to be embodied in 7 U.S.C. § 2014(c), which exempts bona fide students from the requirement that able-bodied adults register for work as a prerequisite to receiving food stamps. 402 F.Supp., at 405. This section expresses, if anything, only a policy that students and trainees not be treated less favorably than workers. Allowing trainees an exclusion for travel allowances would give them more favorable treatment than wage earners, who do not get a deduction for commuting expenses.
It is also contended that the regulations at issue work at cross-purposes with Title XX of the Social Security Act, which provides funding for the state program under which the travel allowance was paid. This contention is true only in the sense that the net benefit of the travel allowance is reduced by the increase in food stamp prices. But this is equally true of other government benefits, such as AFDC, which appellee concedes are properly included in income. Brief for Appellee 23-24. We find no indication that Congress intended different treatment for training allowances. Cf. 42 U.S.C. § 4636; Hamilton v. Butz, 520 F.2d 709 (CA9 1975).
| 12
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429 U.S. 274
97 S.Ct. 568
50 L.Ed.2d 471
MT. HEALTHY CITY SCHOOL DISTRICT BOARD OF EDUCATION, Petitioner,v.Fred DOYLE.
No. 75-1278.
Argued Nov. 3, 1976.
Decided Jan. 11, 1977.
Syllabus
Respondent, an untenured teacher (who had previously been involved in an altercation with another teacher, an argument with school cafeteria employees, an incident in which he swore at students, and an incident in which he made obscene gestures to girl students), conveyed through a telephone call to a radio station the substance of a memorandum relating to teacher dress and appearance that the school principal had circulated to various teachers. The radio station announced the adoption of the dress code as a news item. Thereafter, petitioner School Board, adopting a recommendation of the superintendent, advised respondent that he would not be rehired and cited his lack of tact in handling professional matters, with specific mention of the radio station and obscene-gesture incidents. Respondent then brought this action against petitioner for reinstatement and damages, claiming that petitioner's refusal to rehire him violated his rights under the First and Fourteenth Amendments. Although respondent asserted jurisdiction under both 28 U.S.C. § 1343 and § 1331, the District Court rested jurisdiction only on § 1331. The District Court, which found that the incidents involving respondent had occurred, concluded that the telephone call was "clearly protected by the First Amendment" and that because it had played a "substantial part" in petitioner's decision not to rehire respondent he was entitled to reinstatement with backpay. The Court of Appeals affirmed. Petitioner, in addition to attacking the District Court's jurisdiction under § 1331 on the ground that the $10,000 jurisdictional requirement of that provision was not satisfied in this case, raised an additional jurisdictional issue after this Court had granted certiorari and after petitioner had filed its reply brief, claiming that respondent's only substantive constitutional claim arises under 42 U.S.C. § 1983 and that because petitioner School Board is not a "person" for purposes of § 1983, liability may no more be imposed on it where federal jurisdiction rests on § 1331 than where jurisdiction is grounded on § 1343. Held:
1. Respondent's complaint sufficiently pleaded jurisdiction under 28 U.S.C. § 1331. Though the amount in controversy thereunder must exceed $10,000, even if the District Court had chosen to award only compensatory damages, it was far from a "legal certainty" at the time of suit that respondent would not have been entitled to more than that amount. St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845. Pp. 276-277.
2. Petitioner in making its belated contention concerning § 1983 failed to preserve the issue whether the complaint stated a claim upon which relief could be granted against it. Because the question involved is not of the jurisdictional sort which the Court raises on its own motion, it is assumed without deciding that respondent could sue under § 1331 without regard to the limitations imposed by § 1983. Pp. 277-279.
3. Since under Ohio law the "State" does not include "political subdivisions" (a category including school districts), and the record shows that a local school board like petitioner is more like a county or city than it is an arm of the State, petitioner is not immune from suit under the Eleventh Amendment. Pp. 279-281.
4. Respondent's constitutional claims are not defeated because he did not have tenure. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570. P. 283-284.
5. That conduct protected by the First and Fourteenth Amendments played a substantial part in the decision not to rehire respondent does not necessarily amount to a constitutional violation justifying remedial action. The proper test is one that protects against the invasion of constitutional rights without commanding undesirable consequences not necessary to the assurance of those rights. Since respondent here satisfied the burden of showing that his conduct was constitutionally protected and was a motivating factor in the petitioner's decision not to rehire him, the District Court should have gone on to determine whether petitioner had shown by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct. Pp. 284-287.
529 F.2d 524, vacated and remanded.
Philip S. Olinger, for petitioner.
Michael H. Gottesman, Washington, D. C., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Respondent Doyle sued petitioner Mt. Healthy Board of Education in the United States District Court for the Southern District of Ohio. Doyle claimed that the Board's refusal to renew his contract in 1971 violated his rights under the First and Fourteenth Amendments to the United States Constitution. After a bench trial the District Court held that Doyle was entitled to reinstatement with backpay. The Court of Appeals for the Sixth Circuit affirmed the judgment, 529 F.2d 524, and we granted the Board's petition for certiorari, 425 U.S. 933, 96 S.Ct. 1662, 48 L.Ed.2d 174, to consider an admixture of jurisdictional and constitutional claims.
2
* (1) Although the respondent's complaint asserted jurisdiction under both 28 U.S.C. § 1343 and 28 U.S.C. § 1331, the District Court rested its jurisdiction only on § 1331. Petitioner's first jurisdictional contention, which we have little difficulty disposing of, asserts that the $10,000 amount in controversy required by that section is not satisfied in this case.
3
The leading case on this point is St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938), which stated this test:
4
"(T)he sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction." Id., at 288-289, 58 S.Ct., at 590. (Footnotes omitted.)
5
We have cited this rule with approval as recently as Weinberger v. Wiesenfeld, 420 U.S. 636, 642 n. 10, 95 S.Ct. 1225, 1230, 43 L.Ed.2d 514 (1975), and think it requires disposition of the jurisdictional question tendered by the petition in favor of the respondent. At the time Doyle brought this action for reinstatement and $50,000 damages, he had already accepted a job in a different school system paying approximately $2,000 per year less than he would have earned with the Mt. Healthy Board had he been rehired. The District Court in fact awarded Doyle compensatory damages in the amount of $5,158 by reason of income already lost at the time it ordered his reinstatement. Even if the District Court had chosen to award only compensatory damages and not reinstatement, it was far from a "legal certainty" at the time of suit that Doyle would not have been entitled to more than $10,000.
II
6
The Board has filed a document entitled "Supplemental Authorities" in which it raises quite a different "jurisdictional" issue from that presented in its petition for certiorari and disposed of in the preceding section of this opinion. Relying on the District Court opinion in Weathers v. West Yuma County School Dist., 387 F.Supp. 552, 556 (Colo.1974), the Board contends that even though Doyle may have met the jurisdictional amount requirement of § 1331 it may not be subjected to liability in this case because Doyle's only substantive constitutional claim arises under 42 U.S.C. § 1983. Because it is not a "person" for purposes of § 1983, the Board reasons, liability may no more be imposed on it where federal jurisdiction is grounded on 28 U.S.C. § 1331 than where such jurisdiction is grounded on 28 U.S.C. § 1343.
7
The District Court avoided this issue by reciting that it had not "stated any conclusion on the possible Monroe-Kenosha problem in this case since it seems that the case is properly here as a § 1331 case, as well as a § 1983 one." Pet. for Cert. 14a-15a. This reference to our decisions in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), where it was held that a municipal corporation is not a suable "person" under § 1983, raises the question whether petitioner Board in this case is sufficiently like the municipal corporations in those cases so that it, too, is excluded from § 1983 liability.
8
The quoted statement of the District Court makes clear its view that if the jurisdictional basis for the action is § 1331, the limitations contained in 42 U.S.C. § 1983 do not apply. The Board argues, on the contrary, that since Congress in § 1983 has expressly created a remedy relating to violations of constitutional rights under color of state law, one who seeks to recover for such violations is bound by the limitations contained in § 1983 whatever jurisdictional section he invokes.
9
The question of whether the Board's arguments should prevail, or whether as respondent urged in oral argument, we should, by analogy to our decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), imply a cause of action directly from the Fourteenth Amendment which would not be subject to the limitations contained in § 1983, is one which has never been decided by this Court. Counsel for respondent at oral argument suggested that it is an extremely important question and one which should not be decided on this record. We agree with respondent.
10
(2) The Board has raised this question for the first time in a document filed after its reply brief in this Court. Were it in truth a contention that the District Court lacked jurisdiction, we would be obliged to consider it, even as we are obliged to inquire sua sponte whenever a doubt arises as to the existence of federal jurisdiction. Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 1204, 47 L.Ed.2d 435 (1976); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). And if this were a § 1983 action, brought under the special jurisdictional provision of 28 U.S.C. § 1343 which requires no amount in controversy, it would be appropriate for this Court to inquire, for jurisdictional purposes whether a statutory action had in fact been alleged. City of Kenosha v. Bruno, supra. However, where an action is brought under § 1331, the catchall federal-question provision requiring in excess of $10,000 in controversy, jurisdiction is sufficiently established by allegation of a claim under the Constitution or federal statutes, unless it "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction . . . ." Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946); Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 249, 71 S.Ct. 692, 694, 95 L.Ed. 912 (1951).
11
(3) Here respondent alleged that the Board had violated his rights under the First and Fourteenth Amendments and claimed the jurisdictionally necessary amount of damages. The claim that the Board is a "person" under § 1983, even assuming the correctness of the Board's argument that the § 1331 action is limited by the restrictions of § 1983, is not so patently without merit as to fail the test of Bell v. Hood, supra. Therefore, the question as to whether the respondent stated a claim for relief under § 1331 is not of the jurisdictional sort which the Court raises on its own motion. The related question of whether a school district is a person for purposes of § 1983 is likewise not before us. We leave those questions for another day, and assume, without deciding, that the respondent could sue under § 1331 without regard to the limitations imposed by 42 U.S.C. § 1983.
III
12
The District Court found it unnecessary to decide whether the Board was entitled to immunity from suit in the federal courts under the Eleventh Amendment, because it decided that any such immunity had been waived by Ohio statute and decisional law. In view of the treatment of waiver by a State of its Eleventh Amendment immunity from suit in Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 464-466, 65 S.Ct. 347, 350-351, 89 L.Ed. 389 (1945), we are less sure than was the District Court that Ohio had consented to suit against entities such as the Board in the federal courts. We prefer to address instead the question of whether such an entity had any Eleventh Amendment immunity in the first place, since if we conclude that it had none it will be unnecessary to reach the question of waiver.
13
(4, 5) The bar of the Eleventh Amendment to suit in federal courts extends to States and state officials in appropriate circumstances, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Dept. of Treasury, supra, but does not extend to counties and similar municipal corporations. See Lincoln County v. Luning, 133 U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed. 766 (1890); Moor v. County of Alameda, 411 U.S. 693, 717-721, 93 S.Ct. 1785, 1799-1801, 36 L.Ed.2d 596 (1973). The issue here thus turns on whether the Mt. Healthy Board of Education is to be treated as an arm of the State partaking of the State's Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend. The answer depends, at least in part, upon the nature of the entity created by state law. Under Ohio law the "State" does not include "political subdivisions," and "political subdivisions" do include local school districts. Ohio Rev.Code Ann. § 2743.01 (Page Supp.1975). Petitioner is but one of many local school boards within the State of Ohio. It is subject to some guidance from the State Board of Education, Ohio Rev.Code Ann. § 3301.07 (Page 1972 and Supp.1975), and receives a significant amount of money from the State. Ohio Rev.Code Ann. § 3317 (Page 1972 and Supp.1975). But local school boards have extensive powers to issue bonds, Ohio Rev.Code Ann. § 133.27 (Page 1969), and to levy taxes within certain restrictions of state law. Ohio Rev.Code Ann. §§ 5705.02, 5705.03, 5705.192, 5705.194 (Page 1973 and Supp.1975). On balance, the record before us indicates that a local school board such as petitioner is more like a county or city than it is like an arm of the State. We therefore hold that it was not entitled to assert any Eleventh Amendment immunity from suit in the federal courts.
IV
14
Having concluded that respondent's complaint sufficiently pleaded jurisdiction under 28 U.S.C. § 1331, that the Board has failed to preserve the issue whether that complaint stated a claim upon which relief could be granted against the Board, and that the Board is not immune from suit under the Eleventh Amendment, we now proceed to consider the merits of respondent's claim under the First and Fourteenth Amendments.
15
Doyle was first employed by the Board in 1966. He worked under one-year contracts for the first three years, and under a two-year contract from 1969 to 1971. In 1969 he was elected president of the Teachers' Association, in which position he worked to expand the subjects of direct negotiation between the Association and the Board of Education. During Doyle's one-year term as president of the Association, and during the succeeding year when he served on its executive committee, there was apparently some tension in relations between the Board and the Association.
16
Beginning early in 1970, Doyle was involved in several incidents not directly connected with his role in the Teachers' Association. In one instance, he engaged in an argument with another teacher which culminated in the other teacher's slapping him. Doyle subsequently refused to accept an apology and insisted upon some punishment for the other teacher. His persistence in the matter resulted in the suspension of both teachers for one day, which was followed by a walkout by a number of other teachers, which in turn resulted in the lifting of the suspensions.
17
On other occasions, Doyle got into an argument with employees of the school cafeteria over the amount of spaghetti which had been served him; referred to students, in connection with a disciplinary complaint, as "sons of bitches"; and made an obscene gesture to two girls in connection with their failure to obey commands made in his capacity as cafeteria supervisor. Chronologically the last in the series of incidents which respondent was involved in during his employment by the Board was a telephone call by him to a local radio station. It was the Board's consideration of this incident which the court below found to be a violation of the First and Fourteenth Amendments.
18
In February 1971, the principal circulated to various teachers a memorandum relating to teacher dress and appearance, which was apparently prompted by the view of some in the administration that there was a relationship between teacher appearance and public support for bond issues. Doyle's response to the receipt of the memorandum on a subject which he apparently understood was to be settled by joint teacher-administration action was to convey the substance of the memorandum to a disc jockey at WSAI, a Cincinnati radio station, who promptly announced the adoption of the dress code as a news item. Doyle subsequently apologized to the principal, conceding that he should have made some prior communication of his criticism to the school administration.
19
Approximately one month later the superintendent made his customary annual recommendations to the Board as to the rehiring of nontenured teachers. He recommended that Doyle not be rehired. The same recommendation was made with respect to nine other teachers in the district, and in all instances, including Doyle's, the recommendation was adopted by the Board. Shortly after being notified of this decision, respondent requested a statement of reasons for the Board's actions. He received a statement citing "a notable lack of tact in handling professional matters which leaves much doubt as to your sincerity in establishing good school relationships." That general statement was followed by references to the radio station incident and to the obscene-gesture incident.1
20
The District Court found that all of these incidents had in fact occurred. It concluded that respondent Doyle's telephone call to the radio station was "clearly protected by the First Amendment," and that because it had played a "substantial part" in the decision of the Board not to renew Doyle's employment, he was entitled to reinstatement with backpay. App. to Pet. for Cert. 12a-13a. The District Court did not expressly state what test it was applying in determining that the incident in question involved conduct protected by the First Amendment, but simply held that the communication to the radio station was such conduct. The Court of Appeals affirmed in a brief per curiam opinion. 529 F.2d 524.
21
(6) Doyle's claims under the First and Fourteenth Amendments are not defeated by the fact that he did not have tenure. Even though he could have been discharged for no reason whatever, and had no constitutional right to a hearing prior to the decision not to rehire him, Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).
22
That question of whether speech of a government employee is constitutionally protected expression necessarily entails striking "a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). There is no suggestion by the Board that Doyle violated any established policy, or that its reaction to his communication to the radio station was anything more than an ad hoc response to Doyle's action in making the memorandum public. We therefore accept the District Court's finding that the communication was protected by the First and Fourteenth Amendments. We are not, however, entirely in agreement with that court's manner of reasoning from this finding to the conclusion that Doyle is entitled to reinstatement with backpay.
23
The District Court made the following "conclusions" on this aspect of the case:
24
"1) If a non-permissible reason, e. g., exercise of First Amendment rights, played a substantial part in the decision not to renew even in the face of other permissible grounds the decision may not stand (citations omitted).
25
"2) A non-permissible reason did play a substantial part. That is clear from the letter of the Superintendent immediately following the Board's decision, which stated two reasons the one, the conversation with the radio station clearly protected by the First Amendment. A court may not engage in any limitation of First Amendment rights based on 'tact' that is not to say that the 'tactfulness' is irrelevant to other issues in this case." App. to Pet. for Cert. 12a-13a.
At the same time, though, it stated that
26
"(i)n fact, as this Court sees it and finds, both the Board and the Superintendent were faced with a situation in which there did exist in fact reason . . . independent of any First Amendment rights or exercise thereof, to not extend tenure." Id., at 12a.
27
(7) Since respondent Doyle had no tenure, and there was therefore not even a state-law requirement of "cause" or "reason" before a decision could be made not to renew his employment, it is not clear what the District Court meant by this latter statement. Clearly the Board legally could have dismissed respondent had the radio station incident never come to its attention. One plausible meaning of the court's statement is that the Board and the Superintendent not only could, but in fact would have reached that decision had not the constitutionally protected incident of the telephone call to the radio station occurred. We are thus brought to the issue whether, even if that were the case, the fact that the protected conduct played a "substantial part" in the actual decision not to renew would necessarily amount to a constitutional violation justifying remedial action. We think that it would not.
28
A rule of causation which focuses solely on whether protected conduct played a part, "substantial" or otherwise, in a decision not to rehire, could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing. The difficulty with the rule enunciated by the District Court is that it would require reinstatement in cases where a dramatic and perhaps abrasive incident is inevitably on the minds of those responsible for the decision to rehire, and does indeed play a part in that decision even if the same decision would have been reached had the incident not occurred. The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.
29
This is especially true where, as the District Court observed was the case here, the current decision to rehire will accord "tenure." The long-term consequences of an award of tenure are of great moment both to the employee and to the employer. They are too significant for us to hold that the Board in this case would be precluded, because it considered constitutionally protected conduct in deciding not to rehire Doyle, from attempting to prove to a trier of fact that quite apart from such conduct Doyle's record was such that he would not have been rehired in any event.
30
In other areas of constitutional law, this Court has found it necessary to formulate a test of causation which distinguishes between a result caused by a constitutional violation and one not so caused. We think those are instructive in formulating the test to be applied here.
31
In Lyons v. Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481 (1944), the Court held that even though the first confession given by a defendant had been involuntary, the Fourteenth Amendment did not prevent the State from using a second confession obtained 12 hours later if the coercion surrounding the first confession had been sufficiently dissipated as to make the second confession voluntary. In Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963), the Court was willing to assume that a defendant's arrest had been unlawful but held that "the connection between the arrest and the statement (given several days later) had 'become so attenuated as to dissipate the taint.' Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307." Parker v. North Carolina, 397 U.S. 790, 796, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), held that even though a confession be assumed to have been involuntary in the constitutional sense of the word, a guilty plea entered over a month later met the test for the voluntariness of such a plea. The Court in Parker relied on the same quoted language from Nardone, supra, as did the Court in Wong Sun, supra. While the type of causation on which the taint cases turn may differ somewhat from that which we apply here, those cases do suggest that the proper test to apply in the present context is one which likewise protects against the invasion of constitutional rights without commanding undesirable consequences not necessary to the assurance of those rights.
32
Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this conduct was a "substantial factor" or to put it in other words, that it was a "motivating factor"2 in the Board's decision not to rehire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent's reemployment even in the absence of the protected conduct.
33
We cannot tell from the District Court opinion and conclusions, nor from the opinion of the Court of Appeals affirming the judgment of the District Court, what conclusion those courts would have reached had they applied this test. The judgment of the Court of Appeals is therefore vacated, and the case remanded for further proceedings consistent with this opinion.
34
So ordered.
1
"I. You have shown a notable lack of tact in handling professional matters which leaves much doubt as to your sincerity in establishing good school relationships.
"A. You assumed the responsibility to notify W.S.A.I. Radio Station in regards to the suggestion of the Board of Education that teachers establish an appropriate dress code for professional people. This raised much concern not only within this community, but also in neighboring communities.
"B. You used obscene gestures to correct students in a situation in the cafeteria causing considerable concern among those students present.
"Sincerely yours,
"Rex Ralph
"Superintendent"
2
See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S., at 270-271, n. 21, 97 S.Ct., at 566.
| 23
|
429 U.S. 298
97 S.Ct. 576
50 L.Ed.2d 494
BAYSIDE ENTERPRISES, INC., et al., Petitioners,v.NATIONAL LABOR RELATIONS BOARD.
No. 75-1267.
Argued Nov. 10, 1976.
Decided Jan. 11, 1977.
Syllabus
Petitioners, operating a large, vertically integrated poultry business (including breeding farms, chicken hatcheries, a slaughtering and processing plant, and a mill for producing poultry feed), contract with 119 independently owned and operated farms for the raising of chickens which are hatched in petitioners' hatcheries. Petitioners supply the farms with one-day-old chicks, their feed, medicine and supplies, and fuel, and pick up the chicks about nine weeks later when ready for slaughtering and processing. Petitioners retain title to the chicks at all times and pay the farmers a guaranteed sum plus a bonus based on poultry weight in exchange for the farmers' services in caring for and housing the chicks. The chicks are fed with feed from petitioners' feedmill delivered by truck drivers employed by petitioners specifically for this purpose. The petitioners refused to bargain collectively with a union representing these drivers, contending that the drivers were not employees as defined in § 2(3) of the National Labor Relations Act but were exempted from protections of the Act as agricultural laborers by the related definition in § 3(f) of the Fair Labor Standards Act. The union's resulting unfair labor practice charge was sustained by the National Labor Relations Board and the Court of Appeals on the ground that the truck drivers were not agricultural laborers because their duties were not incidental to petitioners' agricultural activities. Held : The drivers are "employees" within the coverage of the NLRA, not agricultural laborers, their status being determined by the character of the work that they perform for their employer, which work is not incidental to any of their employer's (petitioners') agricultural activities, the feed-mill operation being nonagricultural and the storage and use of feed on the independent farms being agricultural activity performed by the independent farmers not by petitioners. The NLRB's conclusion that the truck drivers are employees is based on a reasonable interpretation of the NLRA, comports with the NLRB's prior holdings, and is supported by the Secretary of Labor's construction of § 3(f). Pp. 299-304.
527 F.2d 436, affirmed.
Alan J. Levenson, Portland, Maine, for petitioners.
Harriet S. Shapiro, Washington, D. C., for respondent.
Mr. Justice STEVENS delivered the opinion of the Court.
1
The petitioners, collectively described as "Bayside," are three affiliated corporations operating a large, vertically integrated poultry business in Maine.1 The question they present is whether six of their employees, who truck poultry feed from their feedmill to 119 farms on which their chickens are being raised, are "agricultural laborers" and therefore not covered by the National Labor Relations Act.
2
After a few preliminary talks, Bayside refused to bargain with the union representing these drivers on the ground that they were not "employees" within the meaning of the Act.2 The union's resulting unfair labor practice charge was sustained by the National Labor Relations Board and the Court of Appeals for the First Circuit.3 An apparent conflict with decisions of the Fifth and Ninth Circuits4 led us to grant certiorari, 425 U.S. 970, 96 S.Ct. 2165, 48 L.Ed.2d 793. We now affirm.
3
The protections of the National Labor Relations Act5 extend only to "employees." Section 2(3) of the Act, 29 U.S.C. § 152(3) provides that the "term 'employee' . . . shall not include any individual employed as an agricultural laborer . . . ." Congress has further provided that the term "agricultural laborer" in the NLRA shall have the meaning specified in § 3(f) of the Fair Labor Standards Act.6 It is therefore, that section and the decisions construing it which are relevant even though this proceeding arose under the NLRA.
Section 3(f) provides, in relevant part:
4
" 'Agriculture' includes farming in all its branches (including) the raising of . . . poultry, and any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming operations . . . ." 52 Stat. 1060, 29 U.S.C. § 203(f).
5
This statutory definition includes farming in both a primary and a secondary sense.7 The raising of poultry is primary farming, but hauling products to or from a farm is not primary farming. Such hauling may, however, be secondary farming if it is work performed "by a farmer or on a farm as an incident to or in conjunction with such farming operations . . . ." Since there is no claim that these drivers work "on a farm," the question is whether their activity should be regarded as work performed "by a farmer." The answer depends on the character of their employer's activities.
6
An employer's business may include both agricultural and nonagricultural activities. Thus, even though most of the operations on a sugar plantation are agricultural, persons employed in the plantation's sugar-processing plant are not "agricultural employees." Maneja v. Waialua Agricultural Co., 349 U.S. 254, 264-270, 75 S.Ct. 719, 725-728, 99 L.Ed. 1040. In this case, both parties agree that some of Bayside's operations are agricultural and some are not.
7
The mill in which Bayside produces poultry feed and the processing plant in which it slaughters and dresses poultry are not agricultural operations.8 On the other hand, the six farms on which it produces hatching eggs, and its activities in breeding and hatching chicks, are clearly agricultural in character. The parties are in dispute with respect to the character of Bayside's work related to the raising of the chickens.
8
The chickens are raised on 119 separate farms owned and operated by independent contractors. Pursuant to a standard contractual arrangement, Bayside provides each such farm with chicks, feed, medicine, fuel, litter, and vaccine. Bayside retains title to the chicks and pays the farmer a guaranteed sum, plus a bonus based on the weight of the bird when grown, in exchange for the farmer's services in housing and caring for the chicks. Bayside delivers the chicks to the independent farms when they are one day old and picks them up for processing about nine weeks later. During the nine-week period, the contract farmers feed the chicks with poultry feed delivered to their feedbins by Bayside drivers.
9
Bayside argues that the activity on the independent farms is part of Bayside's farming operation. The argument is supported by the pervasive character of its control over the raising of the chicks, its ownership of the chicks, its assumption of the risks of casualty loss and market fluctuations, and its control over both the source and the destination of the poultry. In response, the Labor Board argues that the owners of the farms are independent contractors rather than employees of Bayside and therefore the farming activity at these locations is attributable to them rather than to Bayside.
10
The Labor Board has squarely and consistently rejected the argument that all of the activity on a contract farm should be regarded as agricultural activity of an integrated farmer such as Bayside.9 This conclusion by the Board is one we must respect even if the issue might "with nearly equal reason be resolved one way rather than another."10
11
Even if we should regard a contract farm as a hybrid operation where some of the agricultural activity is performed by Bayside and some by the owner of the farm, we would nevertheless be compelled to sustain the Board's order. For the activity of storing poultry feed and then using it to feed the chicks is work performed by the contract farmer rather than by Bayside. Since the status of the drivers is determined by the character of the work which they perform for their own employer, the work of the contract farmer cannot make the drivers agricultural laborers. And their employer's operation of the feedmill is a nonagricultural activity.11 Thus, the Board properly concluded that the work of the truck drivers on behalf of their employer is not work performed "by a farmer" whether attention is focused on the origin or the destination of the feed delivery.
12
The Board's conclusion that these truck drivers are not agricultural laborers is based on a reasonable interpretation of the statute, is consistent with the Board's prior holdings,12 and is supported by the Secretary of Labor's construction of § 3(f).13 Moreover, the conclusion applies to but one specific instance of the "(m)yriad forms of service relationship, with infinite and subtle variations in the terms of employment, (which) blanket the nation's economy,"14 and which the Board must confront on a daily basis. Accordingly, regardless of how we might have resolved the question as an initial matter, the appropriate weight which must be given to the judgment of the agency whose special duty is to apply this broad statutory language to varying fact patterns requires enforcement of the Board's order.15
The judgment of the Court of Appeals is
13
Affirmed.
1
Bayside Enterprises, Inc., and its wholly owned subsidiary Poultry Processing, Inc., are operating corporations; the subsidiary Penobscot Poultry Co. is apparently inactive.
2
The drivers are represented by Truck Drivers, Warehousemen and Helpers Union, Local No. 340, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. That local and the Amalgamated Meatcutters Local 385 jointly represent employees in petitioners' processing plant.
3
216 N.L.R.B. 502, enf'd, 527 F.2d 436 (1975). The Board's order requires Bayside to bargain with the union.
4
NLRB v. Strain Poultry Farms, Inc., 405 F.2d 1025 (CA5 1969); NLRB v. Ryckebosch, Inc., 471 F.2d 20 (CA9 1972).
5
49 Stat. 449, as amended, 29 U.S.C. § 151 et seq.
6
Annually since 1946, Congress, in riders to the Appropriations Acts for the Board, has tied the definition of "agricultural laborer" in § 2(3) of the NLRA to § 3(f) of the FLSA. The latest such rider (90 Stat. 23) provides in relevant part as follows:
"Provided, That no part of this appropriation shall be available to organize or assist in organizing agricultural laborers or used in connection with investigations, hearings, directives, or orders concerning bargaining units composed of agricultural laborers as referred to in section 2(3) of the Act of July 5, 1935 (29 U.S.C. 152), and as amended by the Labor-Management Relations Act, 1947, as amended, and as defined in section 3(f) of the Act of June 25, 1938 (29 U.S.C. 203) . . . ."
7
"First, there is the primary meaning. Agriculture includes farming in all its branches. Certain specific practices such as cultivation and tillage of the soil, dairying, etc., are listed as being included in this primary meaning. Second, there is the broader meaning. Agriculture is defined to include things other than farming as so illustrated. It includes any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidentally to or in conjunction with 'such' farming operations." Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 762-763, 69 S.Ct. 1274, 1278, 93 L.Ed. 1672.
8
These operations are conducted by the subsidiary, Poultry Processing, Inc., which employs about 20 workers at its feedmill and about 380 at its processing plant in Belfast, Me.
9
The Board has held that "when an employer contracts with independent growers for the care and feeding of the employer's chicks, the employer's status as a farmer engaged in raising poultry ends with respect to those chicks." Imco Poultry, 202 N.L.R.B. 259, 260 (1973), citing Strain Poultry Farms, Inc., 160 N.L.R.B. 236 (1966); 163 N.L.R.B. 972 (1967), enf. denied, 405 F.2d 1025 (CA5 1969); Victor Ryckebosch, Inc., 189 N.L.R.B. 40 (1971), enf. denied, 471 F.2d 20 (CA9 1972). Cf. Norton & McElroy Produce, Inc., 133 N.L.R.B. 104 (1961).
10
This is an instance of the kind contemplated by Mr. Justice Frankfurter in his concurrence in Farmers Reservoir & Irrigation Co., supra, 337 U.S. at 770, 69 S.Ct. at 1282:
"Both in the employments which the Fair Labor Standards Act covers and in the exemptions it makes the Congress has cast upon the courts the duty of making distinctions that often are bound to be so nice as to appear arbitrary in relation to each other. A specific situation, like that presented in this case, presents a problem for construction which may with nearly equal reason be resolved one way rather than another."
11
The Board has found in comparable situations that delivery is incidental to the feedmill operation and therefore not an agricultural activity. McElrath Poultry Co., 206 N.L.R.B. 354, 355 (1973), enf. denied, 494 F.2d 518 (CA5 1974); Samuel B. Gass, 154 N.L.R.B. 728, 732-733 (1965), enf'd, 377 F.2d 438 (CA1 1967).
12
Samuel B. Gass, supra ; Strain Poultry Farms, Inc., supra ; Victor Ryckebosch, Inc., supra ; Abbott Farms, Inc., 199 N.L.R.B. 472 (1972), enf. denied, 487 F.2d 904 (CA5 1973); Imco Poultry, supra ; McElrath Poultry Co., Inc., supra.
13
In 1961 the Wage and Hour Division of the Department of Labor issued an interpretative bulletin which remains effective today. It reads, in pertinent part:
"Contract arrangements for raising poultry.
"Feed dealers and processors sometimes enter into contractual arrangements with farmers under which the latter agree to raise to marketable size baby chicks supplied by the former who also undertake to furnish all the required feed and possibly additional items. Typically, the feed dealer or processor retains title to the chickens until they are sold. Under such an arrangement, the activities of the farmers and their employees in raising the poultry are clearly within section 3(f). The activities of the feed dealer or processor, on the other hand, are not 'raising of poultry' and employees engaged in them cannot be considered agricultural employees on that ground. Employees of the feed dealer or processor who perform work on a farm as an incident to or in conjunction with the raising of poultry on the farm are employed in 'secondary' agriculture (see §§ 780.137 et seq., (explaining that work must be performed in connection with the farmer-employer's own farming to qualify as 'secondary' agriculture by a farmer) and Johnston v. Cotton Producers Assn., 244 F.2d 553)." 29 CFR § 780.126 (1975).
14
NLRB v. Hearst Publications, 322 U.S. 111, 126, 64 S.Ct. 851, 858. In that opinion, id., at 131, 64 S.Ct., at 860, the Court stated:
"But where the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court's function is limited. Like the commissioner's determination under the Longshoremen's & Harbor Workers' Act, that a man is not a 'member of a crew' (South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 547, 84 L.Ed. 732) or that he was injured 'in the course of employment' (Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 62 S.Ct. 221, 222, 86 L.Ed. 184) and the Federal Communications Commission's determination that one company is under the 'control' of another (Rochester Telephone Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147), the Board's determination that specified persons are 'employees' under this Act is to be accepted if it has 'warrant in the record' and a reasonable basis in law." (Footnotes omitted.)
15
Cf. NLRB v. United Insurance Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083; Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456; NLRB v. Coca-Cola Bottling Co., 350 U.S. 264, 269, 76 S.Ct. 383, 386, 100 L.Ed. 285.
| 67
|
429 U.S. 305
97 S.Ct. 611
50 L.Ed.2d 502
LOCAL 3489, UNITED STEELWORKERS OF AMERICA, AFL-CIO, et al.v.W. J. USERY, Jr., Secretary of Labor.
No. 75-657.
Argued Nov. 30, 1976.
Decided Jan. 12, 1977.
Syllabus
The provision of petitioner labor unions' constitution limiting eligibility for local union office to members who have attended at least one-half of the local's regular meetings for three years previous to the election of officers, held to violate § 401(e) of the Labor-Management Reporting and Disclosure Act of 1959, which provides that every union member in good standing shall be eligible to be a candidate and to hold office, subject to "reasonable qualifications." Pp. 308-314.
(a) Where such meeting-attendance requirement resulted in the exclusion of 96.5% of petitioner local's members from candidacy for office, the requirement cannot be considered a "reasonable qualification" consistent with Title IV's goal of free and democratic union elections, since a requirement having that result restricts the free choice of the membership in selecting its leaders. P. 310.
(b) The requirement has a restrictive effect on union democracy even when considered as simply mandating a procedure to be followed by any member who wishes to be a candidate, rather than as excluding a category of members from eligibility for office, since it is probable that to require a member to decide upon a potential candidacy at least 18 months in advance of an election when no issues exist to prompt that decision may discourage candidacies and to that extent impair the general membership's freedom to oust incumbents in favor of new leadership. Pp. 310-311.
(c) Procedures that unduly restrict free choice among candidates are forbidden without regard to their success or failure in maintaining corrupt leadership, and hence it is immaterial whether or not it was shown that incumbent leaders of petitioner local became "entrenched" in their offices as a consequence of the operation of the meeting-attendance requirement. Pp. 311-312.
(d) The challenged requirement cannot be justified as encouraging attendance at union meetings, since it plainly has not served that goal. Nor can it be justified as assuring the election of knowledgeable and dedicated leaders, since Congress has determined that the best means to this end is open democratic elections, unfettered by unreasonable candidacy restrictions. P. 312.
(e) In using the term "reasonable qualifications" Congress clearly contemplated a flexible standard, which takes into account all the circumstances of a particular case, for determining the reasonableness of a meeting-attendance requirement. P. 313.
520 F.2d 516, affirmed.
Carl B. Frankel, Pittsburgh, Pa., for petitioners.
John P. Rupp, Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The Secretary of Labor brought this action in the District Court for the Southern District of Indiana under § 402(b) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 534, 29 U.S.C. § 482(b), to invalidate the 1970 election of officers of Local 3489, United Steelworkers of America. The Secretary alleged that a provision of the Steelworkers' International constitution, binding on the Local, that limits eligibility for local union office to members who have attended at least one-half of the regular meetings of the Local for three years previous to the election (unless prevented by union activities or working hours),1 violated § 401(e) of the LMRDA, 29 U.S.C. § 481(e).2 The District Court dismissed the complaint, finding no violation of the Act. The Court of Appeals for the Seventh Circuit reversed. 520 F.2d 516 (1975). We granted certiorari to resolve a conflict among Circuits over whether the Steelworkers' constitutional provision violates § 401(e).3 424 U.S. 907, 96 S.Ct. 1100, 47 L.Ed.2d 311 (1976). We affirm.
2
* At the time of the challenged election, there were approximately 660 members in good standing of Local 3489. The Court of Appeals found that 96.5% of these members were ineligible to hold office, because of failure to satisfy the meeting-attendance rule.4 Of the 23 eligible members, nine were incumbent union officers. The Secretary argues, and the Court of Appeals held, that the failure of 96.5% of the local members to satisfy the meeting-attendance requirement, and the rule's effect of requiring potential insurgent candidates to plan their candidacies as early as 18 months in advance of the election when the reasons for their opposition might not have yet emerged,5 established that the requirement has a substantial antidemocratic effect on local union elections. Petitioners argue that the rule is reasonable because it serves valid union purposes, imposes no very burdensome obligation on the members, and has not proved to be a device that entrenches a particular clique of incumbent officers in the local.
II
3
The opinions in three cases decided in 1968 have identified the considerations pertinent to the determination whether the attendance rule violates § 401(e). Wirtz v. Hotel Employees, 391 U.S. 492, 88 S.Ct. 1743, 20 L.Ed.2d 763; Wirtz v. Bottle Blowers Assn., 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705; Wirtz v. Laborers' Union, 389 U.S. 477, 88 S.Ct. 639, 19 L.Ed.2d 716.
4
(1-5) The LMRDA does not render unions powerless to restrict candidacies for union office. The injunction in § 401(e) that "every member in good standing shall be eligible to be a candidate and to hold office" is made expressly "subject to . . . reasonable qualifications uniformly imposed." But "Congress plainly did not intend that the authorization . . . of 'reasonable qualifications . . .' should be given a broad reach. The contrary is implicit in the legislative history of the section and in its wording . . . ." Wirtz v. Hotel Employees, supra, 391 U.S., at 499, 88 S.Ct., at 1748. The basic objective of Title IV of the LMRDA is to guarantee "free and democratic" union elections modeled on "political elections in this country" where "the assumption is that voters will exercise common sense and judgment in casting their ballots." 391 U.S., at 504, 88 S.Ct., at 1750. Thus, Title IV is not designed merely to protect the right of a union member to run for a particular office in a particular election. "Congress emphatically asserted a vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member." Wirtz v. Bottle Blowers Assn., supra, at 475, 88 S.Ct., at 650; Wirtz v. Local 125, Laborers' Union, supra, 389 U.S., at 483, 88 S.Ct., at 642. The goal was to "protect the rights of rank-and-file members to participate fully in the operation of their union through processes of democratic self-government, and, through the election process, to keep the union leadership responsive to the membership." Wirtz v. Hotel Employees, supra, 391 U.S., at 497, 88 S.Ct., at 1747.
5
Whether a particular qualification is "reasonable" within the meaning of § 401(e) must therefore "be measured in terms of its consistency with the Act's command to unions to conduct 'free and democratic' union elections." 391 U.S., at 499, 88 S.Ct., at 1748. Congress was not concerned only with corrupt union leadership. Congress chose the goal of "free and democratic" union elections as a preventive measure "to curb the possibility of abuse by benevolent as well as malevolent entrenched leadership." Id., at 503, 88 S.Ct., at 1750. Hotel Employees expressly held that that check was seriously impaired by candidacy qualifications which substantially deplete the ranks of those who might run in opposition to incumbents, and therefore held invalid the candidacy limitation there involved that restricted candidacies for certain positions to members who had previously held union office. "Plainly, given the objective of Title IV, a candidacy limitation which renders 93% of union members ineligible for office can hardly be a 'reasonable qualification.' " Id., at 502, 88 S.Ct., at 1749.
III
6
(6) Applying these principles to this case, we conclude that here, too, the antidemocratic effects of the meeting-attendance rule outweigh the interests urged in its support. Like the bylaw in Hotel Employees, an attendance requirement that results in the exclusion of 96.5% of the members from candidacy for union office hardly seems to be a "reasonable qualification" consistent with the goal of free and democratic elections. A requirement having that result obviously severely restricts the free choice of the membership in selecting its leaders.
7
Petitioners argue, however, that the bylaw held violative of § 401(e) in Hotel Employees differs significantly from the attendance rule here. Under the Hotel Employees bylaw no member could assure by his own efforts that he would be eligible for union office, since others controlled the criterion for eligibility. Here, on the other hand, a member can assure himself of eligibility for candidacy by attending some 18 brief meetings over a three-year period. In other words, the union would have its rule treated not as excluding a category of member from eligibility, but simply as mandating a procedure to be followed by any member who wishes to be a candidate.
8
(7) Even examined from this perspective, however, the rule has a restrictive effect on union democracy.6 In the absence of a permanent "opposition party" within the union, opposition to the incumbent leadership is likely to emerge in response to particular issues at different times, and member interest in changing union leadership is therefore likely to be at its highest only shortly before elections.7 Thus it is probable that to require that a member decide upon a potential candidacy at least 18 months in advance of an election when no issues exist to prompt that decision may not foster but discourage candidacies and to that extent impair the general membership's freedom to oust incumbents in favor of new leadership.
9
Nor are we persuaded by petitioners' argument that the Secretary has failed to show an antidemocratic effect because he has not shown that the incumbent leaders of the union became "entrenched" in their offices as a consequence of the operation of the attendance rule. The reasons for leaderships becoming entrenched are difficult to isolate. The election of the same officers year after year may be a signal that antidemocratic election rules have prevented an effective challenge to the regime, or might well signal only that the members are satisfied with their stewardship; if elections are uncontested, opposition factions may have been denied access to the ballot, or competing interests may have compromised differences before the election to maintain a front of unity. Conversely, turnover in offices may result from an open political process, or from a competition limited to candidates who offer no real opposition to an entrenched establishment. But Congress did not saddle the courts with the duty to search out and remove improperly entrenched union leaderships. Rather, Congress chose to guarantee union democracy by regulating not the results of a union's electoral procedure, but the procedure itself. Congress decided that if the elections are "free and democratic," the members themselves are able to correct abuse of power by entrenched leadership. Procedures that unduly restrict free choice among candidates are forbidden without regard to their success or failure in maintaining corrupt leadership.
10
Petitioners next argue that the rule is reasonable within § 401(e) because it encourages attendance at union meetings, and assures more qualified officers by limiting election to those who have demonstrated an interest in union affairs, and are familiar with union problems. But the rule has plainly not served these goals. It has obviously done little to encourage attendance at meetings, which continue to attract only a handful of members.8 Even as to the more limited goal of encouraging the attendance of potential dissident candidates, very few members, as we have said, are likely to see themselves as such sufficiently far in advance of the election to be spurred to attendance by the rule.
11
As for assuring the election of knowledgeable and dedicated leaders, the election provisions of the LMRDA express a congressional determination that the best means to this end is to leave the choice of leaders to the membership in open democratic elections, unfettered by arbitrary exclusions. Pursuing this goal by excluding the bulk of the membership from eligibility for office, and thus limiting the possibility of dissident candidacies, runs directly counter to the basic premise of the statute. We therefore conclude that Congress, in guaranteeing every union member the opportunity to hold office, subject only to "reasonable qualifications," disabled unions from establishing eligibility qualifications as sharply restrictive of the openness of the union political process as is petitioners' attendance rule.
IV
12
(8) Finally, petitioners argue that the absence of a precise statement of what the Secretary of Labor and the courts will regard as reasonable prevents the drafting of a meeting-attendance rule with any assurance that it will be valid under § 401(e). The Secretary, to whom Congress has assigned a special role in the administration of the Act, see Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 296, 13 L.Ed.2d 190 (1964); Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), has announced the following view:
13
"Experience has demonstrated that it is not feasible to establish arbitrary guidelines for judging the reasonableness of (a meeting-attendance eligibility requirement). Its reasonableness must be gauged in the light of all the circumstances of the particular case, including not only the frequency of meetings, the number of meetings which must be attended and the period of time over which the requirement extends, but also such factors as the nature, availability and extent of excuse provisions, whether all or most members have the opportunity to attend meetings, and the impact of the rule, i. e., the number or percentage of members who would be rendered ineligible by its application." 29 CFR § 452.38(a) (1976).
14
Obviously, this standard leads to more uncertainty than would a less flexible rule. But in using the word "reasonable," Congress clearly contemplated exactly such a flexible result. Moreover, on the facts of this case and in light of Hotel Employees, petitioners' contention that they had no way of knowing that a rule disqualifying over 90% of a local's members from office would be regarded as unreasonable in the absence of substantial justification is unpersuasive.9
15
Affirmed.
16
Mr. Justice POWELL, with whom Mr. Justice STEWART and Mr. Justice REHNQUIST join, dissenting.
17
The petitioners' attendance rule, imposed by the constitution of the International Steelworkers' Union provides that no member shall be eligible for election to a local union office unless he has attended one-half of the regular meetings of his local union during the preceding 36 months. The Court holds today, resolving a conflict among the Circuits, that this eligibility requirement is not reasonable within the meaning of § 401(e) of Title IV of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 481(e). As this holding seems to me to be an unwarranted interference with the right of the union to manage its own internal affairs, I dissent.
18
Stated broadly, the purpose of Title IV of the Act is to insure "free and democratic" elections. But
19
"(t)he legislative history (of the Act) shows that Congress weighed how best to legislate against revealed abuses in union elections without departing needlessly from its long-standing policy against unnecessary governmental intrusion into internal union affairs." Wirtz v. Bottle Blowers Assn., 389 U.S. 463, 470-471, 88 S.Ct. 643, 648, 19 L.Ed.2d 705 (1968); Wirtz v. Hotel Employees, 391 U.S. 492, 496, 88 S.Ct. 1743, 1746, 20 L.Ed.2d 763 (1968).
20
Section 401(e) reflects a congressional intent to accommodate both of these purposes. It provides that a labor organization may set "reasonable qualifications uniformly imposed" for members in good standing who wish to be candidates and to hold office. There is no contention that the attendance rule in question was not "uniformly imposed." Nor does the rule render ineligible for office any member who displays enough interest to attend half of his local's meetings.
21
The Court nevertheless, relying heavily on Hotel Employees, holds that this rule imposes an unreasonable qualification, violative of § 401(e). Hotel Employees involved a "prior office" rule that limited candidates for local union office to members who previously had held elective union office. The Court's opinion in that case emphasized that the effect of the prior-office rule was to disqualify 93.1% of the union's membership. In this case, the respondent argues that Hotel Employees enunciated a per se "effects" rule, requiring invalidation of union elections whenever an eligibility rule disqualifies all but a small percentage of the union's membership. Although the Court today does not in terms adopt a per se "effects" analysis, it comes close to doing so. The fact that 96.5% of Local 3489's members chose not to comply with its rule was given controlling weight.
22
In my view, the Court has extended the reach of Hotel Employees far beyond the holding and basic rationale of that case. Indeed, the rule there involved was acknowledged to be a sport "virtually unique in trade union practice." 391 U.S., at 505, 88 S.Ct., at 1751. It was a rule deliberately designed, as intimated by the Court's opinion, to entrench union leadership. Id., at 499, 88 S.Ct., at 1748. Moreover, the general effect of the rule in Hotel Employees was predictable at the time the rule was adopted. By limiting eligibility to members who held or previously had held elective office, the disqualification of a large proportion of the membership was a purposeful and inevitable effect of the structure of the rule itself. The attendance rule before the Court today has no comparable feature. No member is precluded from establishing eligibility. Nor can the effect of the rule be predicted, as any member who demonstrates the requisite interest in union affairs is eligible to seek office. In short, the only common factor between the prior-office rule in Hotel Employees and that before the Court today is the similarity in the percentage of ineligible members. But in one case the effect was predetermined for the purpose of perpetuating control of a few insiders, whereas here the effect resulted from the free choice perhaps the indifference of the rank-and-file membership.
23
In Brennan v. Steelworkers, 489 F.2d 884 (1973), the Court of Appeals for the Sixth Circuit sustained the validity of the identical rule at issue here. In distinguishing Hotel Employees, it said:
24
"The self-evident restrictive character of the 'prior office holding' rule, when accompanied by the numerical effect of drastically limiting the number of eligible candidates for office, justifies the result in Hotel Employees. It is, however, erroneous to conclude, as the Secretary contends, that Hotel Employees commands blind adherence to a per se theory even where, as here, the rule does not by itself disqualify anyone and . . . does serve legitimate union objectives." 489 F.2d at 889.
25
The court went on to conclude that the purposes served by this attendance rule are legitimate.
26
Although the opinion of the Court today discounts the weight to be given these purposes, I agree with the Sixth Circuit that at least facially they serve legitimate and meritorious union purposes: (i) encouraging attendance at meetings; (ii) requiring candidates for office to demonstrate a meaningful interest in the union and its affairs; and (iii) assuring that members who seek office have had an opportunity to become informed as to union affairs. One may argue that requiring attendance at 18 of the 36 meetings prior to the election goes beyond what may be necessary to serve these purposes. But this is a "judgment call" best left to the unions themselves absent a stronger showing of potential for abuse than has been made in this case.
27
The record in this case is instructive. Twenty-three members were eligible to run for office in the 1970 election. These were members who were nominated and who also had complied with the attendance requirement. The record does not show, and indeed no one knows, how many members were eligible under the rule but who were not nominated. Three candidates competed for the office of president, four for the three trustee offices, and six ran unopposed for the remaining offices. Of the 10 officers elected, six were incumbents. Nonincumbents were elected to the offices of vice president, treasurer, recording secretary, and the minor office of guide. There was no history of entrenched leadership and no evidence of restrictive union practices precluding free and democratic elections. Indeed, the record is to the contrary. Five different presidents had been elected during the preceding 10 years, and an estimated 40 changes in officers had occurred in the course of four separate elections. Bernard Frye, who initiated this case by complaint to the Secretary, won the presidency in an election subsequent to 1970 and thereafter lost it.
28
In the final analysis, respondent, who bears the burden of proving that the rule is "unreasonable," rests his entire case on a facial attack upon the attendance rule itself, an attack supported by a statistical "effects test" that at best is ambiguous and one that could invalidate almost any attendance requirement that served legitimate union purposes. In my view, the respondent has failed to prove that the rule is unreasonable. For these reasons, I would reverse the judgment of the Court of Appeals.
1
Constitution of International Union, United Steelworkers of America, Art. VII, § 9(c) (1968).
2
This section provides, in pertinent part:
"(e) In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office (subject to section 504 and to reasonable qualifications uniformly imposed) and shall have the right to vote for or otherwise support the candidate or candidates of his choice, without being subject to penalty, discipline, or improper interference or reprisal of any kind by such organization or any member thereof. . . . The election shall be conducted in accordance with the constitution and bylaws of such organization insofar as they are not inconsistent with the provisions of this title."
3
The Steelworkers' attendance requirement was held not to violate § 401(e) in Brennan v. Steelworkers, 489 F.2d 884 (CA6 1973). Similar meeting-attendance requirements of other unions were found unreasonable in Usery v. Union, 545 F.2d 1300 (CA1 1976); Brennan v. Local Union No. 639, Int'l Brhd. of Teamsters, 161 U.S.App.D.C. 173, 494 F.2d 1092, 1099-1100 (1974); Wirtz v. Bottle Blowers Assn., 405 F.2d 176 (CA3 1968).
4
Petitioners challenge this figure in this Court, but we cannot find it clearly erroneous. It is stipulated that of the approximately 660 members of the local, only 22 had attended enough meetings to qualify, and one additional member was found eligible by adding his excused absences to the meetings he attended. Petitioners now contend that other members may also have been eligible because of excused absences. In view of the admitted facts that the average attendance at meetings was only 47, and that the meetings were held in split day and evening sessions so that workers on any shift could attend, it seems unlikely that a significant number of workers could qualify by this method. In any event, petitioners introduced no evidence to suggest that members other than the above 23 were eligible, and the District Court, in its unpublished opinion, apparently accepted the Secretary's assertion that "in excess of 90% of the local's membership was disqualified. In these circumstances, we cannot speculate that the findings of the courts below may have been materially inaccurate.
5
Regular meetings were held on a monthly basis. Thus, in order to attend half of the meetings in a three-year period, a previously inactive member desiring to run for office would have to begin attending 18 months before the election.
6
Petitioners argue that attendance at 18 relatively short meetings over three years is no very onerous burden on a union member. But this argument misconceives the evil at which the statute aims. We must judge the eligibility rule not by the burden it imposes on the individual candidate, but by its effect on free and democratic processes of union government. Wirtz v. Hotel Employees, 391 U.S., at 499, 88 S.Ct., at 1748.
7
The Secretary suggests that in most unions there is no such organized opposition and that the pattern described in the text is indeed typical.
8
Attendance at Local 3489's meetings averages 47 out of approximately 660 members. There is no indication in the record that this total represents a significant increase over attendance before the institution of the challenged rule.
9
Also unpersuasive is the argument that a union cannot know in advance how many of its members will be disqualified by a meeting-attendance rule. While the precise number may not be predictable, petitioners must have had some awareness of the general attendance rate at union meetings, and if Local 3489's attendance rate is at all typical (and there is no contention that it is not), it should have been fairly obvious that a rule disqualifying all who had not maintained 50% attendance for three years, admittedly one of the most stringent such rules among labor unions, would have a significant antidemocratic impact.
| 67
|
429 U.S. 318
97 S.Ct. 599
50 L.Ed.2d 514
BOSTON STOCK EXCHANGE et al., Appellants,v.STATE TAX COMMISSION et al.
No. 75-1019.
Argued Nov. 2, 1976.
Decided Jan. 12, 1977.
Syllabus
A New York statute imposing a transfer tax on securities transactions, if part of the transaction occurs in New York, was amended in 1968 so that transactions involving an out-of-state sale are taxed more heavily than most transactions involving a sale within the State. The amendment provides for two deviations from the prior uniform application of the statute under which a transaction involving a sale and transfer of shares in New York was taxed the same as a transaction involving an in-state transfer but an out-of-state sale: (1) transactions by nonresidents of New York are afforded a 50% reduction in the tax rate when the transaction involves an in-state sale; and (2) the total tax liability of any taxpayer (resident or nonresident) is limited to $350 for a single transaction when it involves a New York sale. The purpose of the amendment was to provide relief from the competitive disadvantage thought to be created by the transfer tax for New York stock exchanges, as against out-of-state exchanges. Appellant "regional" stock exchanges brought action in state court against appellee State Tax Commission and its members challenging the constitutionality of the 1968 amendment under the Commerce Clause. The trial court denied the Commission's motion to dismiss, but on appeal the amendment was declared to be constitutional. Held : The amendment discriminates against interstate commerce in violation of the Commerce Clause. Pp. 328-337.
(a) No State, consistent with the Commerce Clause, may "impose a tax which discriminates against interstate commerce . . . by providing a direct commercial advantage to local business," Northwestern Cement Co. v. Minnesota, 358 U.S. 450, 458, 79 S.Ct. 357, 362, 3 L.Ed.2d 421. P. 329.
(b) Because it imposes a greater tax liability on out-of-state sales than on in-state sales, the transfer tax, as amended, falls short of the substantially evenhanded treatment demanded by the Commerce Clause, the extra tax burden on out-of-state sales neither compensating for a like burden on in-state sales nor neutralizing an economic advantage previously enjoyed by appellant exchanges as a result of the unamended statute. Pp. 329-332.
(c) The diversion of interstate commerce and diminution of free competition in securities sales created by the 1968 amendment are wholly inconsistent with the free trade purpose of the Commerce Clause. With respect to residents, the discriminatory burden of the maximum tax on out-of-state sales promotes intrastate transactions at the expense of interstate commerce to out-of-state exchanges. With respect to nonresidents, both the maximum tax and the rate reduction provisions discriminate against out-of-state sales, and the fact that this discrimination is in favor of nonresident, in-state sales which may also be considered as interstate commerce does not save the amendment from Commerce Clause restrictions. Pp. 333-336.
37 N.Y.2d 535, 375 N.Y.S.2d 308, 337 N.E.2d 758, reversed and remanded.
Roger Pascal, for appellants.
Robert W. Bush, Voorheesville, for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
In this case we are asked to decide the constitutionality of a recent amendment to New York State's longstanding tax on securities transactions. Since 1905, New York has imposed a tax (transfer tax) on securities transactions, if part of the transaction occurs within the State. In 1968, the state legislature amended the transfer tax statute so that transactions involving an out-of-state sale are now taxed more heavily than most transactions involving a sale within the State. In 1972, appellants, six "regional" stock exchanges located outside New York,1 filed an action in state court against the State Tax Commission of New York and its members. The Exchanges' complaint alleged that the 1968 amendment unconstitutionally discriminates against interstate commerce by imposing a greater tax burden on securities transactions involving out-of-state sales than on transactions of the same magnitude involving in-state sales.2 The State Supreme Court denied the Commission's motion to dismiss the action and the Commission appealed. The Appellate Division reversed and ordered that the Commission's motion be granted to the extent of entering a judgment declaring the 1968 amendment to be constitutional.3 45 A.D. d 365, 357 N.Y.S.2d 116 (1974). The New York Court of Appeals affirmed the order, 37 N.Y.2d 535, 375 N.Y.S.2d 308, 337 N.E.2d 758 (1975), and we noted probable jurisdiction of the Exchanges' appeal, 424 U.S. 964, 96 S.Ct. 1457, 47 L.Ed.2d 730 (1976).
2
* New York Tax Law § 270.1 (McKinney 1966) provides that "all sales, or agreements to sell, or memoranda of sales and all deliveries or transfers of shares or certificates of stock" in any foreign or domestic corporation are subject to the transfer tax.4 Administrative regulations promulgated with respect to the transfer tax provide that the tax applies if any one of the five taxable events occurs within New York, regardless of where the rest of the transaction takes place, and that if more than one taxable event occurs in the State, only one tax is payable on the entire transaction. 20 N.Y.C.R.R. 440.2 (1976). For transactions involving sales, the rate of tax depends on the selling price per share and the total tax liability is determined by the number of shares sold.5 N.Y. Tax Law § 270.2 (McKinney 1966). Thus, under the unamended version of § 270, a transaction involving a sale and a transfer of shares in New York was taxed the same as a transaction involving an in-state transfer but an out-of-state sale. In both instances, the occasion for the tax was the occurrence of at least one taxable event in the State, the rate of tax was based solely on the price of the securities, and the total tax was determined by the number of shares sold. The Exchanges do not challenge the constitutionality of § 270.6
3
None of the States in which the appellant Exchanges are located taxes the sale or transfer of securities. During the 1960's the New York Stock Exchange became concerned that the New York transfer tax created a competitive disadvantage for New York trading and was thus responsible for the growth of out-of-state exchanges.7 In response to this concern and fearful that the New York Stock Exchange would relocate outside New York, the legislature in 1968 enacted § 270-a to amend the transfer tax by providing for two deviations from the uniform application of § 270 when one of the taxable events, a sale, takes place in New York. First, transactions by nonresidents of New York are afforded a 50% reduction ("nonresident reduction") in the rate of tax when the transaction involves an in-state sale. Taxable transactions by residents (regardless of where the sale is made)8 and by nonresidents selling outside the State do not benefit from the rate decrease. Second, § 270-a limits the total tax liability of any taxpayer (resident or nonresident) to $350 (maximum tax) for a single transaction when it involves a New York sale. If a sale is made out-of-State, the § 270 tax rate applies to an in-state transfer (or other taxable event) without limitation.9
4
The reason for the enactment of § 270-a and the intended effect of the amendment are clear from the legislative history. With respect to the amendment, the legislature found:
5
"The securities industry, and particularly the stock exchanges located within the state have contributed importantly to the economy of the state and its recognition as the financial center of the world. The growth of exchanges in other regions of the country and the diversion of business to those exchanges of individuals who are nonresidents of the state of New York, requires recognition that the tax on transfers of stock imposed by article twelve of the tax law, is an important contributing element to the diversion of sales to other areas to the detriment of the economy of the state. Furthermore, in the case of transactions involving large blocks of stock, recognition must be given to the ease of completion of such sales outside the state of New York without the payment of any tax. In order to encourage the effecting by nonresidents of the state of New York of their sales within the state of New York and the retention within the state of New York of sales involving large blocks of stock, a separate classification of the tax on sales by nonresidents of the state of New York and a maximum tax for certain large block sales are desirable." 1968 N.Y. Laws, c. 827, § 1.
6
In granting executive approval to § 270-a, then Governor Nelson Rockefeller confirmed that the purpose of the new law was to "provide long-term relief from some of the competitive pressures from outside the State."10 The Governor announced that as a result of the transfer tax amendment the New York Stock Exchange intended to remain in New York.
7
Appellant Exchanges contend that the legislative history states explicitly what is implicit in the operation of § 270-a: The amendment imposes an unequal tax burden on out-of-state sales in order to protect an in-state business. They argue that this discrimination is impermissible under the Commerce Clause. Appellees do not dispute the statements of the legislature and the Governor that § 270-a is a measure to reduce out-of-state competition with an in-state business. They agree, however, with the holding of the Court of Appeals that the legislature has chosen a nondiscriminatory, and therefore constitutionally permissible, means of "encouraging" sales on the New York Stock Exchange. We hold that § 270-a discriminates against interstate commerce in violation of the Commerce Clause.
II
8
As in Great A & P Tea Co. v. Cottrell, 424 U.S. 366, 96 S.Ct. 923, 47 L.Ed.2d 55 (1976), we begin with the principle that "(t)he very purpose of the Commerce Clause was to create an area of free trade among the several States." McLeod v. J. E. Dilworth Co., 322 U.S. 327, 330, 64 S.Ct. 1023, 1026, 88 L.Ed. 1304 (1944). It is now established beyond dispute that "the Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but by its own force created an area of trade free from interference by the States. . . . (T)he Commerce Clause even without implementing legislation by Congress is a limitation upon the power of the States." Freeman v. Hewit, 329 U.S. 249, 252, 67 S.Ct. 274, 276, 91 L.Ed. 265 (1946). The Commerce Clause does not, however, eclipse the reserved "power of the States to tax for the support of their own governments," Gibbons v. Ogden, 9 Wheat. 1, 199, 6 L.Ed. 23 (1824), or for other purposes, cf. United States v. Sanchez, 340 U.S. 42, 44-45, 71 S.Ct. 108, 110, 95 L.Ed. 47 (1950); rather, the Clause is a limit on state power. Defining that limit has been the continuing task of this Court.
9
On various occasions when called upon to make the delicate adjustment between the national interest in free and open trade and the legitimate interest of the individual States in exercising their taxing powers, the Court has counseled that the result turns on the unique characteristics of the statute at issue and the particular circumstances in each case. E. g., Freeman v. Hewit, supra, 329 U.S., at 252, 67 S.Ct., at 276. This case-by-case approach has left "much room for controversy and confusion and little in the way of precise guides to the States in the exercise of their indispensable power of taxation." Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 457, 79 S.Ct. 357, 362, 3 L.Ed.2d 421 (1959). Nevertheless, as observed by Mr. Justice Clark in the case just cited: "From the quagmire there emerge . . . some firm peaks of decision which remain unquestioned." Id., at 458, 79 S.Ct., at 362. Among these is the fundamental principle that we find dispositive of the case now before us: No State, consistent with the Commerce Clause, may "impose a tax which discriminates against interstate commerce . . . by providing a direct commercial advantage to local business." Ibid. See also Halliburton Oil Well Co. v. Reily, 373 U.S. 64, 83 S.Ct. 1201, 10 L.Ed.2d 202 (1963); Nippert v. Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760 (1946); I. M. Darnell & Son v. Memphis, 208 U.S. 113, 28 S.Ct. 247, 52 L.Ed. 413 (1908); Guy v. Baltimore, 100 U.S. 434, 443, 25 L.Ed. 743 (1880); Welton v. Missouri, 91 U.S. 275, 23 L.Ed. 347 (1876). The prohibition against discriminatory treatment of interstate commerce follows inexorably from the basic purpose of the Clause. Permitting the individual States to enact laws that favor local enterprises at the expense of out-of-state businesses "would invite a multiplication of preferential trade areas destructive" of the free trade which the Clause protects. Dean Milk Co. v. Madison, 340 U.S. 349, 356, 71 S.Ct. 295, 299, 95 L.Ed. 329 (1951).
10
Although apparently accepting the teaching of the prior cases, the Court of Appeals seemed to view § 270-a as "compensatory legislation" enacted to "neutralize" the competitive advantage § 270 conferred on stock exchanges outside New York. Thus, it analogized the New York statute to state use taxes which have survived Commerce Clause challenges. 37 N.Y.2d, at 542, 375 N.Y.S.2d, at 313-314, 337 N.E.2d, at 762. The statute will not support this characterization.
11
Prior to the 1968 amendment, the New York transfer tax was neutral as to in-state and out-of-state sales. An in-state transfer or delivery of securities triggered the tax and the burden fell equally on all transactions regardless of the situs of sale. Thus, the choice of an exchange for the sale of securities that would be transferred or delivered in New York was not influenced by the transfer tax; wherever the sale was made, tax liability would arise. The flow of interstate commerce in securities was channeled neither into nor out of New York by the state tax.11
12
Section 270-a upset this equilibrium. After the amendment took effect, a nonresident contemplating the sale of securities that would be delivered or transferred in New York faced two possible tax burdens. If he elected to sell on an out-of-state exchange, the higher rates of § 270 applied without limitation on the total tax liability; if he sold the securities on a New York exchange, the one-half rate of § 270-a applied and then only up to a $350 tax liability. Similarly, residents engaging in large block transactions on the New York exchanges were subject to a maximum tax levy of $350; but if they sold out-of-State, their tax bill would be limited only by the number of shares sold. Thus, under § 270-a the choice of exchange by all nonresidents and by residents engaging in large transactions is not made solely on the basis of nontax criteria. Because of the delivery or transfer in New York, the seller cannot escape tax liability by selling out of State, but he can substantially reduce his liability by selling in State. The obvious effect of the tax is to extend a financial advantage to sales on the New York exchanges at the expense of the regional exchanges. Rather than "compensating" New York for a supposed competitive disadvantage resulting from § 270, the amendment forecloses tax-neutral decisions and creates both an advantage for the exchanges in New York and a discriminatory burden on commerce to its sister States.
13
Equal treatment of interstate commerce, lacking in § 270-a, has been the common theme running through the cases in which this Court has sustained "compensating," state use taxes. In Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524, 81 L.Ed. 814 (1937), Washington imposed a 2% sales tax on all goods sold at retail in the State. Since the sales tax would have the effect of encouraging residents to purchase at out-of-state stores, Washington also imposed a 2% "compensating tax" on the use of goods within the State. The use tax did not apply, however, when the article had already been subjected to a tax equal to or greater than 2%. The effect of this constitutional tax system was nondiscriminatory treatment of in-state and out-of-state purchases:
14
"Equality exists when the chattel subjected to the use tax is bought in another state and then carried into Washington. It exists when the imported chattel is shipped from the state of origin under an order received directly from the state of destination. In each situation the burden borne by the owner is balanced by an equal burden where the sale is strictly local." Id., at 584, 57 S.Ct., at 527.
15
A similar use-sales-tax structure was sustained in General Trading Co. v. Tax Comm'n, 322 U.S. 335, 64 S.Ct. 1028, 88 L.Ed. 1309 (1944), because the "tax (was) what it professes to be a nondiscriminatory excise laid on all personal property" regardless of where the sale was made. Id., at 338, 64 S.Ct., at 1029. See also International Harvester Co. v. Department of Treasury, 322 U.S. 340, 64 S.Ct. 1019, 88 L.Ed. 1313 (1944); Alaska v. Arctic Maid, 366 U.S. 199, 204, 81 S.Ct. 929, 932, 6 L.Ed.2d 227 (1961). In all the use tax cases, an individual faced with the choice of an in-state or out-of-state purchase could make that choice without regard to the tax consequences. If he purchased in State, he paid a sales tax; if he purchased out of State but carried the article back for use in State, he paid a use tax of the same amount. The taxes treated both transactions in the same manner.
16
Because it imposes a greater tax liability on out-of-state sales than on in-state sales, the New York transfer tax, as amended by § 270-a, falls short of the substantially evenhanded treatment demanded by the Commerce Clause. The extra tax burden on out-of-state sales created by § 270-a is not what the New York Court of Appeals holds it out to be; it neither compensates for a like burden on in-state sales, nor neutralizes an economic advantage previously enjoyed by the appellant Exchanges because of § 270.12
III
17
The court below further attempted to save § 270-a from invalidation under the Commerce Clause by finding that the effect the amendment might have on sales by residents and nonresidents did not amount to unconstitutional discrimination. As to New York residents, the court found that the higher tax on large out-of-state sales would have no "practical" effect since "it is more than likely . . . that the sale would be made on a New York exchange in any event." 37 N.Y.2d, at 543, 375 N.Y.S.2d, at 314, 337 N.E.2d, at 762. As to the discriminatory tax burden on all out-of-state sales by nonresidents, the court observed that because New York sales by nonresidents also involve interstate commerce, § 270-a does not discriminate against interstate commerce in favor of intrastate commerce; rather, it discriminates between two kinds of interstate transactions. Ibid. Although it did not so state, the Court of Appeals apparently believed that such discrimination was permissible under the Commerce Clause. We disagree with the Court of Appeals with respect to both residents and nonresidents.
18
The maximum tax discrimination against out-of-state sales by residents is not triggered until the taxed transaction involves a substantial number of shares. Investors, institutional and individual, engaging in such large-block transactions can be expected to choose an exchange on the basis of services, prices, and other market conditions rather than geographical proximity. Even a small difference in price (of either the securities or the sales services) can, in a large sale, provide a substantial enough additional profit to outweigh whatever additional transaction costs might be incurred from trading on an out-of-state exchange. The New York Legislature, in its legislative findings in connection with § 270-a, recognized that securities transactions by residents were not being conducted only on the New York exchanges; it therefore considered the amendment necessary to "(retain) within the state of New York . . . sales involving large blocks of stock." If, as the Court of Appeals assumed, it were "more than likely" that residents would sell in New York, there would have been no reason for the legislature to reduce the tax burden on in-state sales by residents in order to retain their sales in New York. Nor is the discriminatory burden of the maximum tax insubstantial. On a transaction of 30,000 shares selling at $20 or more, for example, the tax on an in-state sale is the maximum $350, while an out-of-state sale is taxed $1,500. The disparity between the two taxes increases with the number of shares sold. Such a large tax penalty for trading on out-of-state markets cannot be deemed to have no practical effect on interstate commerce.13
19
Both the maximum tax and the rate reduction provisions of § 270-a discriminate against out-of-state sales by nonresidents. The fact that this discrimination is in favor of nonresident, in-state sales which may also be considered as interstate commerce, see Freeman v. Hewit, 329 U.S., at 258-259, 67 S.Ct., at 279-280, does not save § 270-a from the restrictions of the Commerce Clause. A State may no more use discriminatory taxes to assure that nonresidents direct their commerce to businesses within the State than to assure that residents trade only in intrastate commerce. As we stated at the outset, the fundamental purpose of the Clause is to assure that there be free trade among the several States. This free trade purpose is not confined to the freedom to trade with only one State; it is a freedom to trade with any State, to engage in commerce across all state boundaries.
20
There has been no prior occasion expressly to address the question whether a State may tax in a manner that discriminates between two types of interstate transactions in order to favor local commercial interests over out-of-state businesses, but the clear import of our Commerce Clause cases is that such discrimination is constitutionally impermissible. Guy v. Baltimore, 100 U.S., at 443, 25 L.Ed. 743, held that no State, consistent with the Commerce Clause, may "build up its domestic commerce by means of unequal and oppressive burdens upon the industry and business of other States"; and in Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935), New York was prohibited from regulating the price of out-of-state milk purchases because the effect of that regulation would be "to suppress or mitigate the consequences of competition between the states." Id., at 522, 55 S.Ct., at 500.14 More recently, we noted that this "Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere. Even where the State is pursuing a clearly legitimate local interest, this particular burden on commerce has been declared to be virtually per se illegal." Pike v. Bruce Church, Inc., 397 U.S. 137, 145, 90 S.Ct. 844, 849, 25 L.Ed.2d 174 (1970). Cf.Halliburton Oil Well Co. v. Reily, 373 U.S., at 72-73, 83 S.Ct., at 1205-1206.
21
Although the statutes at issue in those cases had the primary effect of prohibiting or discriminatorily burdening a resident's purchase of out-of-state goods and services, the constitutional policy of free trade and competition that led to their demise is equally fatal to the New York transfer tax. New York's discriminatory treatment of out-of-state sales is made possible only because some other taxable event (transfer, delivery, or agreement to sell) takes place in the State. Thus, the State is using its power to tax an in-state operation as a means of "requiring (other) business operations to be performed in the home State." As a consequence, the flow of securities sales is diverted from the most economically efficient channels and directed to New York. This diversion of interstate commerce and diminution of free competition in securities sales are wholly inconsistent with the free trade purpose of the Commerce Clause.
IV
22
Our decision today does not prevent the States from structuring their tax systems to encourage the growth and development of intrastate commerce and industry. Nor do we hold that a State may not compete with other States for a share of interstate commerce; such competition lies at the heart of a free trade policy. We hold only that in the process of competition no State may discriminatorily tax the products manufactured or the business operations performed in any other State.
23
The judgment of the New York Court of Appeals is reversed, and the case remanded for further proceedings not inconsistent with this opinion.15
24
It is so ordered.
1
Appellants are the Boston Stock Exchange, Detroit Stock Exchange, Pacific Coast Stock Exchange, Cincinnati Stock Exchange, Midwest Stock Exchange, and the PBW (Philadelphia-Baltimore-Washington) Stock Exchange. The Exchanges provide facilities for their members to effect the purchase and sale of securities for their own accounts and the accounts of their customers.
2
In the courts below the Exchanges also contended that the amendment to the transfer tax was unconstitutional under the Privileges and Immunities Clause of Art. IV, § 2, and the Equal Protection Clause of the Fourteenth Amendment. They have not brought those claims to this Court and we do not address them.
3
The Commission's motion to dismiss was based on three grounds: (1) the state court lacked subject-matter jurisdiction, (2) the Exchanges did not have standing to question the constitutionality of the statute, and (3) the complaint failed to state a cause of action. All three state courts agreed that there was jurisdiction and standing, but the Appellate Division and the Court of Appeals dismissed the complaint on the merits because the statute was constitutional.
We agree, of course, that state courts of general jurisdiction have the power to decide cases involving federal constitutional rights where, as here, neither the Constitution nor statute withdraws such jurisdiction. We also agree that the Exchanges have standing under the two-part test of Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Appellants' complaint alleged that a substantial portion of the transactions on their exchanges involved securities that are subject to the New York transfer tax, and that the higher tax on out-of-state sales of such securities diverted business from their facilities to exchanges in New York. This diversion was the express purpose of the challenged statute. See infra, at 325-328, and nn. 7, 10. The allegation establishes that the statute has caused them "injury in fact," and that a case or controversy exists. 397 U.S., at 151-152, 90 S.Ct., at 829. The Exchanges are asserting their right under the Commerce Clause to engage in interstate commerce free of discriminatory taxes on their business and they allege that the transfer tax indirectly infringes on that right. Thus, they are "arguably within the
zone of interests to be protected . . . by the . . . constitutional guarantee in question." Id., at 153, 90 S.Ct., at 830. Moreover, the Exchanges brought this action also on behalf of their members. "(A)n association may have standing solely as the representative of its members . . . (if it) allege(s) that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit." Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975). See also National Motor Freight Assn. v. United States, 372 U.S. 246, 83 S.Ct. 688, 9 L.Ed.2d 709 (1963); NAACP v. Alabama, 357 U.S. 449, 458-460, 78 S.Ct. 1163, 1169-1171, 2 L.Ed.2d 1488 (1958). The Exchanges' complaint alleged that their members traded on their own accounts in securities subject to the New York transfer tax. The members therefore suffer an actual injury within the zone of interests protected by the Commerce Clause, and the Exchanges satisfy the requirements for representational standing.
4
After the decision by the New York Court of Appeals in this case, § 21(2) (d) of the Federal Securities Acts Amendments of 1975 became effective. This amendment provides that no State may tax a change in beneficial or record ownership of securities if the change is effected through the facilities of a registered clearing house or registered transfer agent unless the change would otherwise be taxable if the facilities were not physically located in the taxing State. § 21(2)(d), 89 Stat. 161, amending § 28 of the Securities Exchange Act of 1934, 15 U.S.C. § 78bb(d) (1970 ed., Supp. V). A transfer agent is defined in § 3(6) of the 1975 amendments, 89 Stat. 100, amending § 3(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(25) (1970 ed., Supp. V). Although the Senate Committee was unclear as to whether the New York transfer tax reached such changes in ownership, the Senate Report on the 1975 amendments indicates that § 21(2)(d) was directed to
New York's transfer tax in particular, and in general to similar taxes being considered by other States. S.Rep. No. 94-75, p. 60 (1975) U.S.Code Cong. & Admin.News 1975, p. 179. See N.Y.Tax Law § 270.5(i)-(l ) (McKinney Supp.1976).
On December 1, 1975, counsel for the New York State Department of Taxation and Finance issued an opinion that the 1975 amendments limited the types of taxable events covered by § 270:
"(W)here the sole event in New York State is the delivery or transfer to or by a 'registered clearing agency' or a 'registered transfer agent,' as those terms are defined under the Securities Exchange Act of 1934, there is no stock transfer tax due and owing on and after December 1, 1975. However, where a sale, agreement to sell, memorandum of sale or any other delivery or transfer takes place in New York State, the stock transfer tax due and owing thereon must be paid." 2 CCH N.Y.Tax Rep. P 57-101.605 (1976).
Although the new federal law may eliminate many transactions as taxable events under § 270, the constitutional questions raised by the Exchanges on this appeal still apply to the transactions that are taxable under § 270 after the 1975 amendments.
5
The rates provided for in § 270.2 range from 1.25 cents per share when the sale price of the security is less than $5 to the highest rate of 5 cents per share when the price is $20 or more. When no sale is involved, e. g., a gift, the rate is a constant 2.5 cents per share. In recent years, a 25% surcharge has been added to all transfer taxes. N.Y. Tax Law § 270-d (McKinney Supp.1976).
6
Shortly after it was first enacted, the New York transfer tax was upheld against a challenge under the Fourteenth Amendment in New York ex rel. Hatch v. Reardon, 204 U.S. 152, 27 S.Ct. 188, 51 L.Ed. 415 (1907). The writ of error in Hatch did not challenge the constitutionality of the statute under the Commerce Clause, but both parties argued that issue before the Court. Id., at 157, 27 S.Ct., at 189. In response to those arguments, Mr. Justice Holmes observed only that the particular transaction involved was intrastate and that therefore the tax as applied to the party before the Court did not implicate the Commerce Clause. Id., at 161-162, 27 S.Ct., at 190-191. As to the question of whether the statute should fall because it would also be applied to interstate transactions, the Court found that the seller lacked standing to raise that claim. The Commerce Clause question was thus left undecided. Id., at 160-161, 27 S.Ct., at 190-191.
Thirty-three years later, the New York Court of Appeals held, in a 4-3 decision, that the transfer tax did not violate the Commerce Clause. O'Kane v. State, 283 N.Y. 439, 28 N.E.2d 905 (1940). The challenge there was to a tax levy "upon an agreement for the sale of shares of stock which are to be sold and delivered across State lines." Id., at 442, 28 N.E.2d, at 906. The state
court expressly noted that the tax, as then applied, was "a non-discriminatory State tax," and that "no discrimination was practiced on interstate commerce." Id., at 444, 447, 28 N.E.2d, at 907, 909. In the absence of discrimination, the tax was held not to be an undue burden on commerce.
7
In a public statement on the proposed amendment to § 270, the president of the New York Stock Exchange explained the competitive problems of his organization and urged that the transfer tax be amended to help solve them:
"(T)he stock transfer tax has been the subject of extensive study by the City, State and the securities industry. These studies indicate that the New York securities markets have experienced increasing competitive problems in recent years from regional stock exchanges located in San Francisco, Los Angeles, Chicago, Detroit, Philadelphia and Boston. Some 88% of share trading on these exchanges is in New York Stock Exchange listed securities.
"From 1965 through 1967, the volume of trading on the regional exchanges increased by 73.2%. Regional 'cross' volume (a transaction on a regional exchange in which the broker finds both the buyer and seller) has increased by 202% in 1965-67. This indicates the loss of business by the New York markets to the regionals. As their volume continues to grow, a snowball effect develops. They become more competitive and are able to take more and more business away from New York. A loss of business to New York securities markets also means a loss of stock transfer tax revenue to New York City.
" . . . However, the existing law can be amended in such a way as to ease the competitive disadvantage of the tax on New York securities markets and still preserve the revenue from the tax.
"Competitive problems are particularly acute in two areas non-resident investors and large block transactions." Statement of Robert W. Haack, Mar. 4, 1968.
8
The Exchanges do not challenge New York's authority to tax residents in a greater amount than nonresidents as long as the extent of the tax burden does not depend on an out-of-state sale.
9
The nonresident reduction and the maximum tax of § 270-a initially involved a smaller disparity between in-state and out-of-state sales. The gap was gradually increased until the current rates took effect on July 1, 1973.
The relevant provisions of N.Y. Tax Law § 270-a (McKinney Supp.1976) are as follows:
"1. Notwithstanding the provisions of section two hundred seventy of this chapter on and after July first, nineteen hundred sixty-nine, the rates of tax set forth in paragraph (a) of this subdivision and the maximum amounts of tax set forth in subdivision two of this section shall apply, in the case of those sales made within this state subject to tax under section two hundred seventy and described in paragraph (a) of this subdivision and subdivision two of this section.
"(a) On such sales by a nonresident during the periods set forth in the following table, the rates of tax shall be the percentages, set forth in such table, of the rates of tax provided in section two hundred seventy of this article:
"Percentage of Rates of
Tax Provided in Section
two hundred seventy
of this article
"Period
"July 1, 1969
to June 30, 1970.............................. 95%
"July 1, 1970
to June 30, 1971.............................. 90%
"July 1, 1971
to June 30, 1972.............................. 80%
"July 1, 1972
to June 30, 1973.............................. 65%
"July 1, 1973
and thereafter................................ 50%
"2. Where any sale made within the state and subject to the tax imposed by this chapter relates to shares or certificates of the same class and issued by the same issuer the amount of tax upon any such single taxable sale shall not exceed, during the period beginning on July first, nineteen hundred sixty-nine and ending on June thirtieth, nineteen hundred seventy, the sum of two thousand five hundred dollars; during the period beginning on July first, nineteen hundred seventy and ending on June thirtieth, nineteen hundred seventy-one, the sum of one thousand two hundred fifty dollars; during the period beginning on July first, nineteen hundred seventy-one and ending on June thirtieth, nineteen hundred seventy-two, the sum of seven hundred fifty dollars; during the period beginning on July first, nineteen hundred seventy-two and ending on June thirtieth, nineteen hundred seventy-three, the sum of five hundred dollars; and on and after July first, nineteen hundred seventy-three, the sum of three hundred fifty dollars; provided, however, that sales made within this state by any member of a securities exchange or by any registered dealer, who is permitted or required pursuant to any rules and regulations promulgated by the tax commission pursuant to the provisions of section two hundred eighty-one-a of this chapter to pay the taxes imposed by this article without the use of the stamps prescribed by this article, pursuant to one or more orders placed with the same member of a securities exchange or the same registered dealer on one day, by the same person, each relating to shares or certificates of the same class and issued by the same issuer, all of which sales are executed on the same day (regardless of whether it be the day of the placing of the orders), shall, for the purposes of this subdivision two, be considered to constitute a single taxable sale."
10
In his memorandum of approval of the transfer tax amendment, Governor Rockefeller explained the changing competitive patterns in the securities industry and acknowledged that § 270-a was a response to these changes:
"Since the stock transfer tax was enacted in 1905, there have been far reaching changes in the securities industry, but the stock transfer tax has not been revised to keep pace with those changes. The securities industry has grown from an essentially New York industry to one of national and international scope. While the bulk of stock transfers still funnels through New York, only twelve percent of the Nation's investors are located in the State. At the same time, competition for the New York markets has been heightened by the rise of regional stock exchanges located outside the State where more than 90 percent of trading is in securities listed on the New York Stock Exchange. The development of modern telecommunications and electronic computer systems has, of course, greatly expanded the capacity of the regional exchanges to challenge the New York exchanges for business.
"The bill recognizes the changing character of the securities industry and the importance of its continued presence and strength for the future economic prosperity of the State and will provide long-term relief from some of the competitive pressures from outside the State.
"As a result of adoption of the revisions of the stock transfer tax contained in this bill, the New York Stock Exchange has announced that it intends to remain and expand in New York and is now studying sites for a new exchange building in downtown Manhattan." Public Papers of Governor Nelson A. Rockefeller 553 (1968).
11
Of course, the unamended § 270 did discourage sales in New York when no other taxable event would occur in that State, since out-of-state sales would not be taxed at all while in-state sales would be taxed at the full rate. Section 270-a, however, does not neutralize this competitive disadvantage of the New York exchanges. Although the reduced tax of the amendment decreases the disincentive to trade out of State, to the extent that any tax is imposed on transactions involving only an in-state sale, sales in New York are discouraged. Had New York sought to eliminate the only competitive edge enjoyed by the regional exchanges as a result of § 270, it could have done so without burdening commerce to its sister States by simply declaring that sales would not be a taxable event. Under that system, sellers who would not otherwise be liable for the tax would not incur liability by electing to sell on a New York exchange.
12
Because of the discrimination inherent in § 270-a, we also reject the Commission's argument that the tax should be sustained because it is imposed on a local event at the end of interstate commerce. While it is true that, absent an undue burden on interstate commerce, the Commerce Clause does not prohibit the States from taxing the transfer of property within the State, the tax may not discriminate between transactions on the basis of some interstate element. International Harvester Co. v. Department of Treasury, 322 U.S. 340, 347-348, 64 S.Ct. 1019, 1022-1023, 88 L.Ed. 1313 (1944). As was held in Welton v. Missouri, 91 U.S. 275, 282, 23 L.Ed. 347 (1876): "(T)he commercial power (of the Federal Government) continues until the commodity has ceased to be the subject of discriminating legislation by reason of its foreign character. That power protects it, even after it has entered the State, from any burdens imposed by reason of its foreign origin."
13
Even if we did not conclude that large-block sellers are likely to rely on economic rather than geographical factors in choosing an exchange, § 270-a would fall before the Commerce Clause. Whatever the current inclinations of New York investors, the Clause protects out-of-state businesses from any discriminatory burden on their interstate commercial activities. Even if the tax is not now the sole cause of New York residents' refusal to trade on out-of-state exchanges, at the very least it reinforces their choice of an in-state exchange and is an inhibiting force to selling out of State; that inhibition is an unconstitutional barrier to the free flow of commerce.
14
Baldwin is particularly relevant to this case. After holding that the Commerce Clause prohibits obstructions to competition between the States, Mr. Justice Cardozo expressly rejected the proposition that such obstructions may be justified as measures to assure the economic health of local industry:
"If New York, in order to promote the economic welfare of her farmers, may guard them against competition with the cheaper prices of Vermont, the door has been opened to rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation.
"The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division." 294 U.S., at 522-523, 55 S.Ct., at 500.
For the same reasons that Baldwin rejected New York's attempts to protect its dairy industry from competition from without, we now reject a similar attempt to protect New York's securities industry.
15
When it enacted § 270-a, the New York Legislature also enacted a saving provision such that the invalidity of any part of the amendment should not affect the enforcement of any other part. It is not clear from the saving provision whether the legislature intended that the distinction between residents and nonresidents should survive the invalidation of the discrimination between in-state and out-of-state sales. Compare 1968 N.Y. Laws, c. 827, § 10 with § 11. Construction of the savings clause is, of course, a question of state law appropriately decided by the state courts.
| 78
|
429 U.S. 363
97 S.Ct. 582
50 L.Ed.2d 550
OREGON ex rel. STATE LAND BOARD, Petitioner,v.CORVALLIS SAND AND GRAVEL COMPANY. CORVALLIS SAND AND GRAVEL COMPANY, Petitioner, v. OREGON ex rel. STATE LAND BOARD.
Nos. 75-567, 75-577.
Argued Oct. 4, 1976.
Decided Jan. 12, 1977.
Syllabus
This litigation involves a dispute between the State of Oregon and an Oregon corporation over the ownership of two portions of land underlying the Willamette River, which is navigable but not an interstate boundary. The first portion has been within the riverbed since Oregon's admission into the Union, while the second portion is in an area that was not part of the riverbed at the time of Oregon's admission but later became part of the riverbed because of changes in the river's course. In an ejectment action brought by Oregon against the corporation, which had been digging in the disputed part of the riverbed for 40 to 50 years without a lease from the State, the trial court awarded the first portion to the State on the ground that it had acquired sovereign title thereto upon admission into the Union and had not conveyed it, but with respect to the second portion found that avulsion, rather than accretion, had caused the changes in the river channel and that therefore the title to the land remained in the corporation, its original owner before it became riverbed. The Oregon Court of Appeals affirmed, taking the view that it was bound to apply federal common law to the resolution of the dispute by Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S.Ct. 517, 38 L.Ed.2d 526, and accordingly holding that the trial court's award of the second portion to the corporation was correct either under the theory of avulsion or under an exception to the accretion rule, and that preservation of the State's interest in navigation, fishing, and other related goals did not require that it acquire ownership of the new riverbed. The Oregon Supreme Court affirmed, with certain modifications dealing only with a factual question regarding the length of the second portion. Held: The disputed ownership of the riverbed lands should be decided solely as a matter of Oregon law and not by federal common law, since application of federal common law is required neither by the equal-footing doctrine nor by any other principle of federal law. If the lands at issue did pass under the equal-footing doctrine, state title is not subject to defeasance and state law governs subsequent dispositions. A similar result obtains in the case of riparian lands which did not pass under that doctrine; state law governs issues relating to such property, like other real property, unless some other principle of federal law requires a different result. Bonelli Cattle Co., supra, was wrong in treating the equal-footing doctrine as a source of federal common law after the doctrine had vested title to the riverbed in question in that case in the State of Arizona as of the time of its admission into the Union, and accordingly that case's application of federal common law to cases such as the instant one is overruled. Pp. 368-382.
272 Or. 545, 536 P.2d 517; 272 Or. 550, 538 P.2d 70, vacated and remanded.
Robert Mix, Corvallis, Or., for Corvallis Sand & Gravel Co.
Russell Iungerich, Los Angeles, Cal., for the State of Cal. as amicus curiae, by special leave of Court.
Peter S. Herman, Salem, Or., for Oregon ex rel. State Land Bd.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
This lawsuit began when the State of Oregon sued Corvallis Sand & Gravel Co., an Oregon corporation, to settle the ownership of certain lands underlying the Willamette River. The Willamette is a navigable river, and this land is located near Corvallis, Oregon. The river is not an interstate boundary.
2
Corvallis Sand had been digging in the disputed part of the riverbed for 40 to 50 years without a lease from the State. The State brought an ejectment action against Corvallis Sand, seeking to recover 11 separate parcels of riverbed, as well as damages for the use of the parcels. The State's complaint alleged that by virtue of its sovereignty it was the owner in fee simple of the disputed portions of the riverbed, and that it was entitled to immediate possession and damages. Corvallis Sand denied the State's ownership of the bed.
3
Each party was partially successful in the Oregon courts,1 and we granted cross petitions for certiorari. 423 U.S. 1048, 46 L.Ed.2d 636. Those courts understandably felt that our recent decision in Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S.Ct. 517, 38 L.Ed.2d 526 (1973), required that they ascertain and apply principles of federal common law to the controversy. Twenty-six States have joined in three amicus briefs urging that we reconsider Bonelli, supra, because of what they assert is its significant departure from long-established precedent in this Court.
4
* The nature of the litigation and the contentions of the parties may be briefly stated. Title to two distinct portions of land has been at issue throughout. The first of these portions has apparently been within the bed of the Willamette River since Oregon's admission into the Union.
5
The other portion of the land underlies the river in an area known as Fischer Cut, which was not a part of the riverbed at the time Oregon was admitted to the Union. The trial court found that prior to a flood which occurred in November 1909, the Willamette flowed around a peninsula-like formation known as Fischer Island, but that by 1890 a clearly discernible overflow channel across the neck of the peninsula had developed. Before 1909 this channel carried the flow of the river only at its intermediate or high stages, and the main channel of the river continued to flow around Fischer Island. But in November 1909, a major flood, in the words of the Oregon trial court, "suddenly and with great force and violence converted Fischer Cut into the main channel of the river."
6
The trial court, sitting without a jury, awarded all parcels in dispute, except for the Fischer Cut lands, to the State. That court found that the State had acquired sovereign title to those lands upon admission into the Union, and that it had not conveyed that title. The State was also awarded damages to recompense it for Corvallis Sand's use of the lands.
7
With respect to the Fischer Cut lands, the trial court found that avulsion, rather than accretion, had caused the change in the channel of the river, and therefore the title to the lands remained in Corvallis Sand, the original owner of the land before it became riverbed.
8
The Oregon Court of Appeals affirmed. That court felt bound, under Bonelli, to apply federal common law to the resolution of this property dispute. In so doing, the court found that the trial court's award of Fischer Cut to Corvallis Sand was correct either under the theory of avulsion, or under the so-called exception to the accretion rule, announced in Commissioners v. United States, 270 F. 110 (CA8 1920).2 The court, finding that preservation of the State's interest in navigation, fishing, and other related goals did not require that it acquire ownership of the new bed, rejected the argument that the State's sovereign title to a riverbed follows the course of the river as it moves.
II
9
In this Court, Oregon urges that we either modify Bonelli or expound "federal common law" in such a way that its title to all the land in question will be established. Corvallis Sand urges that we interpret "federal common law" in such a manner that it will prevail. Amici, as previously noted, urge that we re-examine Bonelli because in their view that case represented a sharp break with well-established previous decisions of the Court.3
10
The dispute in Bonelli was over the ownership of the former bed of the Colorado River, a bed which the river had abandoned because of a federal rechanneling project. The Bonelli land was not part of the actual riverbed, however, either at the time Arizona was admitted to the Union, or at the time of suit. Before Arizona had been admitted as a State, Bonelli's predecessor in title had received a United States patent to the land. Over a period of years the Colorado River had migrated gradually eastward, eroding its east bank and depositing alluvion on its west bank in the process. In the course of this movement of the river the Bonelli land, which had at the time of patent been on the east bank, was submerged, and, until the rechanneling project, most of it was under water. After the completion of the rechanneling project the bed of the Colorado River was substantially narrowed, and the Bonelli land re-emerged.
11
The Supreme Court of Arizona held that Arizona owned the title to the beds of navigable rivers within its borders, and that Arizona therefore acquired title to the Bonelli land when it became part of the riverbed as a result of the eastward migration of the Colorado. That court went on to hold that under state law the re-emergence of the land was an avulsive change, which did not divest the State of its title to the exposed land. This Court granted certiorari and reversed the Supreme Court of Arizona.
12
We phrased the critical inquiry in Bonelli in these words:
13
"The issue before us is not what rights the State has accorded private (land) owners in lands which the State holds as sovereign; but, rather, how far the State's sovereign right extends under the equal-footing doctrine and the Submerged Lands Act whether the State retains title to the lands formerly beneath the stream of the Colorado River or whether that title is defeasible by the withdrawal of those waters." 414 U.S., at 319-320, 94 S.Ct. at 523. (Emphasis added.)
14
We held that federal common law should govern in deciding whether a State retained title to lands which had re-emerged from the bed of a navigable stream, relying in part on Borax, Consolidated, Ltd. v. Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935). That case held that the extent and validity of a federal grant was a question to be resolved by federal law, and in Bonelli we decided that the nature of the title conferred by the equal-footing doctrine set forth in Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565 (1845), should likewise be governed by federal common law. Under the equal-footing doctrine "the new States since admitted have the same rights, sovereignty and jurisdiction . . . as the original States possess within their respective borders." Mumford v. Wardwell, 6 Wall. 423, 436, 18 L.Ed. 756 (1867). Pollard's Lessee held that under the equal-footing doctrine new States, upon their admission to the Union, acquire title to the lands underlying navigable waters within their boundaries.
15
We went on to discuss the nature of the sovereign's interest in the riverbed, which we found to lie in the protection of navigation, fisheries, and similar purposes. We held that under federal common law, as we construed it in that case, Arizona's sovereign interest in the re-emerged land was not sufficient to enable it to retain title. We found the principle governing title to lands which have been formed by accretion, rather than that which governs title where there has been an avulsive change in the channel of the river, to be applicable. We chose the former because it would both ensure the riparian owner access to the water's edge and prevent the State from receiving a windfall. We therefore decided that Bonelli, as riparian owner, was entitled to the land in question.
16
Our analysis today leads us to conclude that our decision to apply federal common law in Bonelli was incorrect. We first summarize the basis for this conclusion, and then elaborate in greater detail in Parts III and IV, infra.
17
The title to the land underlying the Colorado River at the time Arizona was admitted to the Union vested in the State as of that date under the rule of Pollard's Lessee v. Hagan, supra. Although federal law may fix the initial boundary line between fast lands and the riverbeds at the time of a State's admission to the Union, the State's title to the riverbed vests absolutely as of the time of its admission and is not subject to later defeasance by operation of any doctrine of federal common law. Wilcox v. Jackson, 13 Pet. 498, 10 L.Ed. 264 (1839); Weber v. Harbor Comm'rs, 18 Wall. 57, 21 L.Ed. 798 (1873).
18
Bonelli's thesis that the equal-footing doctrine would require the effect of a movement of the river upon title to the riverbed to be resolved under federal common law was in error. Once the equal-footing doctrine had vested title to the riverbed in Arizona as of the time of its admission to the Union, the force of that doctrine was spent; it did not operate after that date to determine what effect on titles the movement of the river might have. Our error, as we now see it, was to view the equal-footing doctrine enunciated in Pollard's Lessee v. Hagan as a basis upon which federal common law could supersede state law in the determination of land titles. Precisely the contrary is true; in Pollard's Lessee itself the equal-footing doctrine resulted in the State's acquisition of title notwithstanding the efforts of the Federal Government to dispose of the lands in question in another way.
19
The equal-footing doctrine did not, therefore, provide a basis for federal law to supersede the State's application of its own law in deciding title to the Bonelli land, and state law should have been applied unless there were present some other principle of federal law requiring state law to be displaced. The only other basis4 for a colorable claim of federal right in Bonelli was that the Bonelli land had originally been patented to its predecessor by the United States, just as had most other land in the Western States. But that land had long been in private ownership and, hence, under the great weight of precedent from this Court, subject to the general body of state property law. Wilcox v. Jackson, supra, 13 Pet., at 517, 10 L.Ed. 264. Since the application of federal common law is required neither by the equal-footing doctrine nor by any other claim of federal right, we now believe that title to the Bonelli land should have been governed by Arizona law, and that the disputed ownership of the lands in the bed of the Willamette River in this case should be decided solely as a matter of Oregon law.
III
20
Pollard's Lessee v. Hagan, supra, holds that the State receives absolute title to the beds of navigable waterways within its boundaries upon admission to the Union, and contains not the slightest suggestion that such title is "defeasible" in the technical sense of that term. The issue there was whether a federal patent, issued after the admission of Alabama to the Union, could validly convey lands that had underlain navigable waters upon Alabama's admission. The Court had before it the following jury charge, given in the ejectment action below:
21
"(T)hat if (the jury) believed the premises sued for were below usual high water-mark, at the time Alabama was admitted into the union, then the act of Congress, and the patent in pursuance thereof, could give the plaintiffs no title, whether the waters had receded by the labour of man only, or by alluvion . . ." 3 How., at 220.
22
The Court regarded the case as one of signal importance, and it observed that the decision was approached "with a just sense of its great importance to all the states of the union, and particularly to the new ones." Ibid. Mr. Justice Catron, in his dissenting opinion, commented that he deemed the case "the most important controversy ever brought before this court, either as it respects the amount of property involved, or the principles on which the present judgment proceeds . . . ." Id., at 235. The Court gave careful consideration to the role of the United States in holding the lands in question in trust for the new States, and to the recognition that the new States would be admitted "upon an equal footing, in all respects whatever . . ." with the original States. Id., at 224. Citing Martin v. Waddell, 16 Pet. 367, 410, 10 L.Ed. 997 (1842), the Court noted that the original States held the " 'absolute right to all their navigable waters, and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution.' " 3 How., at 229. The Court then concluded:
23
"First, The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the states respectively. Secondly, The new states have the same rights, sovereignty, and jurisdiction over this subject as the original states. Thirdly, The right of the United States to the public lands, and the power of Congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant to the plaintiffs the land in controversy . . . ." Id., at 230.
24
In so holding, the Court established the absolute title of the States to the beds of navigable waters, a title which neither a provision in the Act admitting the State to the Union5 nor a grant from Congress to a third party was capable of defeating.
25
Thus under Pollard's Lessee the State's title to lands underlying navigable waters within its boundaries is conferred not by Congress but by the Constitution itself. The rule laid down in Pollard's Lessee has been followed in an unbroken line of cases which make it clear that the title thus acquired by the State is absolute so far as any federal principle of land titles is concerned. For example, in Weber v. Harbor Comm'rs, 18 Wall., at 65-66, 21 L.Ed. 798, the Court reaffirmed the doctrine of Pollard's Lessee:
26
"Upon the admission of California into the Union upon equal footing with the original States, absolute property in, and dominion and sovereignty over, all soils under the tidewaters within her limits passed to the State, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters . . ." (Emphasis added.)
27
In Barney v. Keokuk, 94 U.S. 324, 338, 24 L.Ed. 224 (1877), the Court extended the doctrine to waters which were nontidal but nonetheless navigable, consistent with its earlier extension of admiralty jurisdiction to such waters in The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 13 L.Ed. 1058 (1852). And in Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894), the Court recounted in extenso the many cases which had followed the doctrine of Pollard's Lessee. In summarizing its holding, 152 U.S., at 57-58, 14 S.Ct. at 569, the Court stated:
28
"The new states admitted into the Union since the adoption of the constitution have the same rights as the original states in the tide waters, and in the lands under them, within their respective jurisdictions. The title and rights of riparian or littoral proprietors in the soil below (the) high-water mark, therefore, are governed by the laws of the several states, subject to the rights granted to the United States by the constitution."
29
At the time of our decision in Bonelli, this line of authority stood side by side with, and was wholly consistent with, other cases requiring the application of federal law to questions of land titles or boundaries. Where Mexico had patented tidal lands to a private owner before ceding to the United States the territory which ultimately became the State of California, California did not succeed to the ownership of such lands upon her admission to the Union. Knight v. United Land Assn., 142 U.S. 161, 12 S.Ct. 258, 35 L.Ed. 974 (1891). If a navigable stream is an interstate boundary, this Court, in the exercise of its original jurisdiction over suits between States, has necessarily developed a body of federal common law to determine the effect of a change in the bed of the stream on the boundary. See, e. g., Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186 (1892); Arkansas v. Tennessee, 246 U.S. 158, 38 S.Ct. 301, 62 L.Ed. 638 (1918). Congress possesses by virtue of its commerce power a "navigational servitude" with respect to navigable waters.
30
"All navigable waters are under the control of the United States for the purpose of regulating and improving navigation, and although the title to the shore and submerged soil is in the various states and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the federal government by the constitution." Gibson v. United States, 166 U.S. 269, 271-272, 17 S.Ct. 578, 579, 41 L.Ed. 996 (1897).
31
In Borax Consolidated, Ltd. v. Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935), this Court also found a basis to apply federal law, but its rationale does not dictate a different result in this case. In Borax, the city of Los Angeles brought suit to quiet title in certain land in Los Angeles Harbor. Los Angeles claimed the land under a grant from the State of California, whereas Borax, Ltd., claimed the land as a successor in interest to a federal patentee. The federal patent had purported to convey a specified quantity of land, 18.88 acres, according to a survey by the General Land Office. This Court recognized that if the patent purported to convey lands which were part of the tidelands, the patent would be invalid to that extent since the Federal Government has no power to convey lands which are rightfully the State's under the equal-footing doctrine. Id., at 17-19, 56 S.Ct., at 26-27. The Court affirmed the decision of the Court of Appeals to remand for a new trial to allow the city to attempt to prove that some portion of the lands described in the federal patent was in fact tideland.
32
The Court went on to hold that the boundary between the upland and tideland was to be determined by federal law. Id., at 22, 56 S.Ct., at 29. This same principle would require that determination of the initial boundary between a riverbed, which the State acquired under the equal-footing doctrine, and riparian fast lands likewise be decided as a matter of federal law rather than state law. But that determination is solely for the purpose of fixing the boundaries of the riverbed acquired by the State at the time of its admission to the Union; thereafter the role of the equal-footing doctrine is ended, and the land is subject to the laws of the State. The expressions in Bonelli suggesting a more expansive role for the equal-footing doctrine are contrary to the line of cases following Pollard's Lessee.6
33
For example, this Court has held that subsequent changes in the contour of the land, as well as subsequent transfers of the land, are governed by the state law. Joy v. St. Louis, 201 U.S. 332, 343, 26 S.Ct. 478, 481, 50 L.Ed. 776 (1906). Indeed the rule that lands once having passed from the Federal Government are subject to the laws of the State in which they lie antedates Pollard's Lessee. As long ago as 1839, the Court said:
34
"We hold the true principle to be this, that whenever the question in any Court, state or federal, is, whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States." Wilcox v. Jackson, 13 Pet., at 517, 10 L.Ed. 264. (Emphasis added.) The contrary approach would result in a perverse application of the equal-footing doctrine. An original State would be free to choose its own legal principles to resolve property disputes relating to land under its riverbeds; a subsequently admitted State would be constrained by the equal-footing doctrine to apply the federal common-law rule, which may result in property law determinations antithetical to the desires of that State. See, Bonelli, 414 U.S., at 332-333, 94 S.Ct., at 529 (Stewart, J., dissenting).
35
Thus, if the lands at issue did pass under the equal-footing doctrine, state title is not subject to defeasance and state law governs subsequent dispositions.7
IV
36
A similar result obtains in the case of riparian lands which did not pass under the equal footing doctrine. This Court has consistently held that state law governs issues relating to this property, like other real property, unless some other principle of federal law requires a different result.
37
Under our federal system, property ownership is not governed by a general federal law, but rather by the laws of the several States. "The great body of law in this country which controls acquisition, transmission, and transfer of property, and defines the rights of its owners in relation to the state or to private parties, is found in the statutes and decisions of the state." Davies Warehouse Co. v. Bowles, 321 U.S. 144, 155, 64 S.Ct. 474, 480, 88 L.Ed. 635 (1944). This is particularly true with respect to real property, for even when federal common law was in its heyday under the teachings of Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865 (1842), an exception was carved out for the local law of real property. Id., at 18. See United States v. Little Lake Misere Land Co., 412 U.S. 580, 591, 93 S.Ct. 2389, 2396, 37 L.Ed.2d 187 (1973).
38
This principle applies to the banks and shores of waterways, and we have consistently so held. Barney v. Keokuk, 94 U.S. 324, 24 L.Ed. 224 (1877), involved an ejectment action by the plaintiff against the city involving certain land along the banks of the Mississippi River. After noting that the early state doctrines regarding the ownership of the soil of nontidal waters were based upon the then-discarded English view that nontidal waters were presumed nonnavigable, the Court clearly articulated the rule that the States could formulate, and modify, rules of riparian ownership as they saw fit:
39
"Whether, as rules of property, it would now be safe to change these doctrines (arising out of the confusion of the original classification of nontidal waters as nonnavigable) where they have been applied, as before remarked, is for the several States themselves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections. In our view of the subject the correct principles were laid down in Martin v. Waddell, 16 Pet. 367, 10 L.Ed. 997; Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565, and Goodtitle v. Kibbe, 9 id. 471, 13 L.Ed. 220. These cases related to tide-water, it is true; but they enunciate principles which are equally applicable to all navigable waters." Id., at 338.
40
In Shively v. Bowlby, the Court canvassed its previous decisions and emphasized that state law controls riparian ownership. The Court concluded that grants by Congress of land bordering navigable waters "leave the question of the use of the shores by the owners of uplands to the sovereign control of each state, subject only to the rights vested by the constitution in the United States." 152 U.S., at 58, 14 S.Ct., at 570. As the Court again emphasized in Packer v. Bird, 137 U.S. 661, 669, 11 S.Ct. 210, 212, 34 L.Ed. 819 (1891):
41
"(W)hatever incidents or rights attach to the ownership of property conveyed by the government will be determined by the states, subject to the condition that their rules do not impair the efficacy of the grants, or the use and enjoyment of the property, by the grantee."
42
This doctrine was squarely applied to the case of a riparian proprietor in Joy v. St. Louis, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776 (1906). The land at issue had originally been granted to the patentee's predecessor by Spain, and Congress had confirmed the grant and issued letters patent. This Court held that the fact that a plaintiff claimed accretions to land patented to his predecessor by the Federal Government did not confer federal-question jurisdiction, and implicitly rejected any notion that "federal common law"8 had any application to the resolution. Central to this result was the holding:
43
"As this land in controversy is not the land described in the letters patent or the (A)cts of Congress, but, as is stated in the petition, is formed by accretions or gradual deposits from the river, whether such land belongs to the plaintiff is, under the cases just cited, a matter of local or state law, and not one arising under the laws of the United States." Id., at 343, 26 S.Ct., at 481.
V
44
Upon full reconsideration of our decision in Bonelli, we conclude that it was wrong in treating the equal-footing doctrine as a source of federal common law after that doctrine had vested title to the riverbed in the State of Arizona as of the time of its admission to the Union. We also think there was no other basis in that case, nor is there any in this case, to support the application of federal common law to override state real property law. There are obviously institutional considerations which we must face in deciding whether for that reason to overrule Bonelli or to adhere to it, and those considerations cut both ways. Substantive rules governing the law of real property are peculiarly subject to the principle of stare decisis. See United States v. Title Ins. Co., 265 U.S. 472, 44 S.Ct. 621, 68 L.Ed. 1110 (1924).
45
Here, however, we are not dealing with substantive property law as such, but rather with an issue substantially related to the constitutional sovereignty of the States. In cases such as this, considerations of stare decisis play a less important role than they do in cases involving substantive property law. Cf. The Passenger Cases, 7 How. 283, 470, 12 L.Ed. 702 (1849) (Taney, C. J., dissenting); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-411, 52 S.Ct. 443, 446-449, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944). Even if we were to focus on the effect of our decision upon rules of substantive property law, our concern for unsettling titles would lead us to overrule Bonelli, rather than to retain it. See Minnesota Co. v. National Co., 3 Wall. 332, 334, 18 L.Ed. 42 (1866). Since one system of resolution of property disputes has been adhered to from 1845 until 1973, and the other only for the past three years, a return to the former would more closely conform to the expectations of property owners than would adherence to the latter. We are also persuaded that, in large part because of the positions taken in the briefs presented to the Court in Bonelli, the Bonelli decision was not a deliberate repudiation of all the cases which had gone before. We there proceeded on the view, which we now think to have been mistaken, that Borax, supra, should be read so expansively as to in effect overrule subsilentio the line of cases following Pollard's Lessee.
46
For all of these reasons, we have now decided that Bonelli's application of federal common law to cases such as this must be overruled.
47
The judgment under review is vacated, and the case remanded to the Supreme Court of Oregon for further proceedings not inconsistent with this opinion.
48
It is so ordered.
49
Mr. Justice BRENNAN, dissenting.
50
I would not overrule Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S.Ct. 517, 38 L.Ed.2d 526 (1973), and would therefore affirm the judgment of the Oregon Supreme Court.
51
Mr. Justice MARSHALL, with whom Mr. Justice WHITE joins, dissenting.
52
The Court today overrules a three-year-old decision, Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S.Ct. 517, 38 L.Ed.2d 526 (1973), in which seven of the eight participating Justices joined. In addition, as the Court is certain to announce when the occasion arises, today's holding also overrules Hughes v. Washington, 389 U.S. 290, 88 S.Ct. 438, 19 L.Ed.2d 530 (1967), a nine-year-old decision also joined by all but one of the participating Justices.1 It is surprising, to say the least, to find these nearly unanimous recent decisions swept away in the name of stare decisis. See ante, at 381-382.
53
The public, especially holders of riparian or littoral property whose titles derive from the United States, deserve some explanation for the Court's change of course. Yet today's majority does not contend either that circumstances have changed since 1973 or that experience has shown Hughes and Bonelli to be unworkable. Nor does the majority attempt to explain why a result it finds so clearly commanded by our earlier cases was almost unanimously rejected by this Court twice in the last decade. We are left, then, with a mystery.
54
I respectfully suggest that the solution to this puzzle is not hard to find. In contrast to the Bonelli and Hughes Courts, the Court today decides a question the parties did not present,2 brief,3 or argue.4 By so doing, the Court rules without the benefit of "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). The lack of illumination has caused the Court to choose the wrong path.
55
* The question the Court elects to decide in this case is whether a grant of riparian5 land by the Federal Government is to be interpreted according to federal or state law. The Court holds that federal law governs only the determination of the initial boundaries of the grant; all other questions are to be determined under state law. This conclusion depends on an unjustifiably limited interpretation of the meaning of a riparian grant.
56
It is undisputed that "the quality of being riparian" is perhaps "the land's 'most valuable feature' and is part and parcel of the ownership of the land itself." Bonelli Cattle Co. v. Arizona, 414 U.S., at 326, 94 S.Ct., at 526 quoting Hughes v. Washington, 389 U.S., at 293, 88 S.Ct., at 440. Cf. New Orleans v. United States, 10 Pet. 662, 717, 9 L.Ed. 573 (1836). In the natural course, however, a riparian boundary tends to move, a fact reflected in the common-law doctrines of accretion, avulsion, erosion, and reliction. Prior to today's ruling, federal grantees of riparian land, and holders under them, correctly understood that their titles incorporated boundaries whose precise location would depend on the movements of the water and on the federal common law.
57
There can be no doubt that the federal grantee's expectation that his grant would be interpreted according to federal law and his belief that federal law would recognize boundary shifts occasioned by changes in the course of the water bordering his land were well founded. One hundred forty years ago, this Court found it obvious that whoever had title to the land bordering water would have title to new land formed by alluvial deposits on the existing upland:
58
"The question is well settled at common law, that the person whose land is bounded by a stream of water, which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss, by the same means which may add to his territory: and as he is without remedy for his loss, in this way, he cannot be held accountable for his gain." Ibid. (emphasis added).
59
This statement of the law was quoted by the Court in County of St. Clair v. Lovingston, 23 Wall. 46, 68, 23 L.Ed. 59 (1874). The Court in County of St. Clair went on to note: "The riparian right to future alluvion is a vested right. It is an inherent and essential attribute of the original property." Ibid. (emphasis added). Similarly, in Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894),6 the Court said:
60
"The rule, everywhere admitted, that where the land encroaches upon the water by gradual and imperceptible degrees, the accretion or alluvion belongs to the owner of the land, is equally applicable to lands bounding on tide waters or on fresh waters, and to the king or the state as to private persons, and is independent of the law governing the title in the soil covered by the water." Id., at 35, 14 S.Ct., at 561 (emphasis added).
61
Thus, the right to such additions7 was part of the title which passed with the federal grant, cf. 3 American Law of Property § 15.27, p. 859 (A. J. Casner ed. 1952), and was protected by federal law. By holding that state law now governs the impact of changes in the course of the bordering water on a federal riparian grant, the Court denies that "a question which concerns the validity and effect of an act done by the United States" is "necessarily a federal question." Borax Consolidated, Ltd. v. Los Angeles, 296 U.S. 10, 22, 56 S.Ct. 23, 29, 80 L.Ed. 9 (1935). As far as federal law is concerned, a federal riparian grant is now understood to have incorporated a fixed rather than ambulatory boundary. Ante, at 376. The rule of New Orleans v. United States, supra, and County of St. Clair v. Lovingston, supra, is discarded along with Bonelli and Hughes.
62
The cases the Court concludes compel this dramatic shift do not even support it. Wilcox v. Jackson, 13 Pet. 498, 10 L.Ed. 264 (1839),8 was an action of ejectment brought against the commander of a United States military post to recover part of the post. The plaintiff claimed under a state registration certificate. As the majority notes, the Court rejected that argument with the following language:
63
"We hold the true principle to be this, that whenever the question in any Court, state or federal, is, whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States." Id., at 517 (emphasis added).
64
The italicized language, on which the majority opinion makes no comment, explains why state law cannot control this case. Denial of the riparian holder's federal common-law rights to a changing boundary is not "consistent with the admission that the title . . . vested according to the laws of the United States."
65
In Packer v. Bird, 137 U.S. 661, 11 S.Ct. 210, 34 L.Ed. 819 (1891),9 the Court held that it would construe federal grants of lands bordering navigable but nontidal waters as reaching only to the edge of the stream. As it did in Wilcox, the Court in Packer noted that state law governs property once it has passed from the hands of the Federal Government. But the Packer Court, like its predecessor, also noted that the influence of state law is "subject to the condition that (state) rules do not impair the efficacy of the (federal) grants, or the use and enjoyment of the property, by the grantee." 137 U.S., at 669, 11 S.Ct., at 212. Today's holding, which allows States to divest federally granted lands of their valuable quality of being riparian simply by refusing to recognize the titleholders' common-law rights, obviously removes this fundamental limitation on state power.
66
The Court also attempts to draw support from cases which affirm the proposition that the riparian title passed by a federal grant conveys title only to the water's edge, not to the middle of the stream. Barney v. Keokuk, 94 U.S. 324, 24 L.Ed. 224 (1877),10 was a controversy over the ownership of land created when the city of Keokuk filled in land below the ordinary high-water mark. The plaintiff claimed title to the new land by virtue of his asserted ownership of the adjacent upland. The Court noted that "(i)t is generally conceded that the riparian title attaches to subsequent accretions to the land effected by the gradual and imperceptible operation of natural causes." Id., at 337. Whether the same rule applied to land created out of the bed of the river, however, the Court considered a question of state law. The reason for this as the Court explained, is that the riparian rights granted by the Federal Government extended only to the water's edge; if the States wish to grant the riparian owner rights beyond that point, they may do so at their own discretion. See id., at 338. The Court transforms this conclusion that the States may, if they wish, enlarge the title granted by the Federal Government into support for the proposition that the States may also restrict that title. The transformation is impressive, but it is not logical.
67
The issue before the Court in Shively v. Bowlby, supra, was the title to land below the high-water mark of the Columbia River in Oregon. Shively claimed under a prestatehood grant from the United States, while Bowlby based his title on a subsequent grant from the State of Oregon. The Court held for Bowlby, finding that although Congress could have granted Shively title to the land he claimed,11 it had not done so, nor had the State. 152 U.S., at 48-57, 14 S.Ct., at 566-569.
68
As the majority indicates, the Shively Court engaged in a thorough review of earlier cases. It summarized its conclusions, in part, as follows:
69
"The title and rights of riparian or littoral proprietors in the soil below (the) high-water mark, therefore, are governed by the laws of the several states, subject to the rights granted to the United States by the constitution." Id., at 57-58, 14 S.Ct., at 569.
70
But the Shively Court, unlike today's majority, realized that this proposition does not affect the rights of riparian holders to the benefits of the common-law doctrines governing boundary changes.12 Those rights are "independent of the law governing the title in the soil covered by the water." Id., at 35, 14 S.Ct., at 561. See id., at 36, 14 S.Ct., at 561.13
71
Thus, the cases refute the majority's contention that the results in Hughes and Bonelli sharply departed from prior law. Today's holding cannot, therefore, be based on interpretation of the meaning of the pre-statehood riparian grants under which Corvallis Sand & Gravel holds title, since the right to an ambulatory boundary was assumed to be part of the rights of a riparian grantee at the time the grants were made. Moreover, the cases also demonstrate that there is no constitutional basis for today's holding. The only constitutional question discussed in the majority opinion is the law governing the States' title to land beneath navigable waters, and the rights of the riparian holder are independent of that law.
II
72
Since today's ruling cannot be a matter either of constitutional law or of interpretation of the meaning of federal grants, it must be a choice-of-law decision. In deciding whether to formulate and apply a federal common-law rule, "normally the guiding principle is that a significant conflict between some federal policy or interest and the use of state law in the premises must first be specifically shown." Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966). See generally P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 756-832 (2d ed. 1973). In order to assure an informed presentation of federal policies and interests when faced with a choice between federal and state law, this Court in the past has invited the Solicitor General to file a brief amicus curiae expressing the views of the United States.14 See, e. g., Wallis v. Pan American Petroleum Corp., 382 U.S. 810, 86 S.Ct. 80, 15 L.Ed.2d 59 (1965); Yiatchos v. Yiatchos, 372 U.S. 905, 83 S.Ct. 721, 9 L.Ed.2d 715 (1963). We followed this practice in both Bonelli, 409 U.S. 1022, 93 S.Ct. 461, 34 L.Ed.2d 313 (1972), and Hughes, 385 U.S. 807, 87 S.Ct. 82, 17 L.Ed.2d 50 (1966), and the Solicitor General participated as an amicus in both cases.
73
Today's majority has made no similar effort to inform itself about the impact of its ruling on the Federal Government. Indeed, the majority opinion does not even consider that issue, although it is normally central to a choice-of-law decision. As the opinion and result show, the only views the Court has received are those of the amici States, whose interests here are hostile to those of the United States.
74
I cannot, of course, know what the Solicitor General would have said had the Court indicated that it was considering a choice-of-law question and invited him to present the views of the Government. In both Bonelli and Hughes, however, the submissions for the United States as amicus curiae strongly urged the Court to hold that federal rather than state law governed the case. In Bonelli, the Government noted that its quiet enjoyment of the more than 200 miles of Colorado River shoreline it owned in Arizona had been threatened by some interpretations of the state court's decision. Memorandum for the United States as Amicus Curiae 1-2, filed Sept. 20, 1973, in Bonelli Cattle Co. v. Arizona, O.T. 1973, No. 72-397. The Government urged that the state-court opinion be given a narrow interpretation and affirmed as consistent with the applicable federal law. Id., at 3-5.
75
In Hughes, the Government urged that the decision of the State Supreme Court be reversed. The Solicitor General explained that the Government considered that decision a serious threat:
76
"The decision is of broad consequence. It trenches on a significant element of title to realty acquired from the United States in the past and it materially curtails the nature of the title that the United States may convey in the future. . . . Equally important, it affects the powers of the United States with respect to more than 200 miles of Washington's coastline owned today by the federal government. Moreover, the principle of a fixed tideland boundary may readily be brought to bear on the property of the United States and its patentees in other coastal States. . . . Nor is there any apparent reason why, in Washington or elsewhere, the principle should be limited to tidelands; it can be applied with consistency of logic to the shifting banks of rivers and lakes owned by a State. . . . An inducement for the adoption and expansion of this principle is not lacking, since it tends inevitably to bring land into State ownership, and the sale of land thus acquired has been recognized as an attractive source of State revenue. . . .
77
"To be sure, the court below stated that it did not 'question the federal government's right over its own property'. . . . (But) the court below failed to recognize that 'the federal government's right over its own property' embraces the right effectively to dispose of such property." Memorandum for United States as Amicus Curiae 3-5 in Hughes v. Washington, O.T. 1967, No. 15.
78
The Solicitor General explained that the decision in Hughes endangered the Government's ability to carry out congressional policy toward Indians, since the Government would no longer have been able to convey rights to a boundary adjacent to the sea if it turned over trust lands to the Indian beneficiaries. Id., at 5-6; cf. United States v. Washington, 294 F.2d 830 (CA9 1961), cert. denied, 369 U.S. 817, 82 S.Ct. 828, 7 L.Ed.2d 783 (1962). But the problem with the Indian trust lands was merely "exemplary" because the state decision in Hughes
79
"restrains the government from disposing of the full measure of its title in connection with any program or policy which it may wish to pursue in the future. In sum, we do not believe that it can be said here, as it could in Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, (86 S.Ct. 1301, 16 L.Ed.2d 369) that there is 'no significant threat to any identifiable federal policy or interest.' " Memorandum for United States as Amicus Curiae 6 in Hughes v. Washington, supra.
80
Today's decision necessarily has an even greater impact on federal interests, since it casts doubt on the Government's continued ownership "of the full measure of its title."
III
81
One final word. Stare decisis should be more than a fine-sounding phrase. This is especially true for us, because "unless we respect the . . . decisions of this Court, we can hardly expect that others will do so." Mitchell v. W. T. Grant Co., 416 U.S. 600, 629, 634, 94 S.Ct. 1895, 1910, 1913, 40 L.Ed.2d 406 (1974) (Stewart, J., dissenting). Accordingly, "(a) substantial departure from precedent can only be justified . . . in the light of experience with the application of the rule to be abandoned or in the light of an altered historic environment." Id., at 634-635, 94 S.Ct., at 1913. Such admonitions are even more salient where land titles are concerned. Yet the majority has advanced neither experience nor changed circumstances to justify its interment of a 7-1 decision of this Court issued barely three years ago.
82
I am convinced that if the Court had considered the cases on which it relies in the light of an adversary presentation and had invited the Government to explain its interest in the application of federal law, the result today would be different. I therefore respectfully dissent.
1
The case was brought and tried in the Circuit Court of Benton County, Ore. Both parties appealed from the judgment rendered by that court to the Oregon Court of Appeals. Subsequent to that judgment, our decision in Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S.Ct. 517, 38 L.Ed.2d 526 (1973), had come down and the Court of Appeals employed the reasoning of Bonelli in deciding the appeal. Both parties then sought review in the Supreme Court of Oregon, which granted discretionary review limited to the factual question of the length of a channel known as Fischer Cut, modified the Court of Appeals' decision in this respect, and, without discussion, affirmed the decision "(i)n all other respects." Because of this procedural history we shall, as a matter of convenience, refer in the course of this opinion to rulings and findings of the "Oregon courts."
2
The court quoted the following language from Commissioners in support of that rule:
" '(The accretion rule) is applicable to and governs cases where the boundary line, the thread of the stream, by the slow and gradual processes of erosion and accretion creeps across the intervening space between its old and its new location. To this rule, however, there is a well-established and rational exception. It is that, where a river changes its main channel, not by excavating, passing over, and then filling the intervening place between its old and its new main channel, but by flowing around this intervening land, which never becomes in the meantime its main channel, and the change from the old to the new main channel is wrought during many years by the gradual or occasional increase from year to year of the proportion of the waters of the river passing over the course which eventually becomes the new main channel, and the decrease from year to year of the proportion of its waters passing through the old main channel until the greater part of its waters flow through the new main channel, the boundary line between the estates remains in the old channel subject to such changes in that channel as are wrought by erosion or accretion while the water in it remains a running stream. . . .' " 18 Or.App. 524, 539-540, 526 P.2d 469, 477 (1974).
3
The dissenting opinion is correct in stating that neither party in its brief requested that Bonelli be overruled. That question was elaborately briefed by amici, however, and counsel were questioned about it during oral argument. Counsel for amici urged that Bonelli be overruled. Counsel for the State agreed that a re-examination of Bonelli would be appropriate, and that upon such re-examination issues such as those in this case should be left to state law. Tr. of Oral Arg. 34.
4
Arizona, in its brief, also relied upon the Submerged Lands Act of 1953, 43 U.S.C. § 1301. However, as discussed in Bonelli, the Submerged Lands Act did not alter the scope or effect of the equal-footing doctrine, nor did it alter State property law regarding riparian ownership. The effect of the Act was merely to confirm the States' title to the beds of navigable waters within their boundaries as against any claim of the United States Government. As merely a declaration of the States' preexisting rights in the riverbeds, nothing in the Act in any way mandates, or even indicates, that federal common law should be used to resolve ownership of lands which, by the very terms of the Act, reside in the States. We recognized as much in Bonelli, see 414 U.S., at 318, 94 S.Ct. at 522, and our references to the Act in Bonelli in no way indicate that it was the Act, rather than the scope of the equal-footing doctrine, which resulted in our application of federal common law:
"Since the Act does not extend to the States any interest beyond those afforded by the equal-footing doctrine, the State can no more base its claim to lands unnecessary to a navigational purpose on the Submerged Lands Act than on that doctrine." Id., at 324-325, 94 S.Ct., at 525.
5
The compact entered into when Alabama was admitted to the Union contained the following language: " '(A)ll navigable waters within the said state, shall for ever remain public highways, free to the citizens of said state, and of the United States, without any tax, duty, impost, or toll therefor, imposed by the said state.' . . ." 3 How., at 229. The Court found that this language merely enunciated Congress' right to regulate commerce upon the navigable waters, similarly reserved to it with respect to the original States, and thus the language did not detract from the State's absolute title in the bed. Id., at 229-230.
6
Amici Utah and New Mexico also urge us to reconsider our decision in Hughes v. Washington, 389 U.S. 290, 88 S.Ct. 438, 19 L.Ed.2d 530 (1967). They advance the same reasons for such reconsideration as they do with respect to Bonelli. But Hughes was not cited by the Oregon courts below, and in Bonelli we expressly declined to rely upon it as a basis for our decision there, see 414 U.S., at 321 n. 11, 94 S.Ct., at 523. We therefore have no occasion to address the issue. We are aware of the fact that Hughes, gave to Borax the same sort of expansive construction as did Bonelli, but we are likewise aware that Hughes dealt with oceanfront property, a fact which the Court thought sufficiently different from the usual situation so as to justify a "federal common law" rule of riparian proprietorship:
"The rule deals with waters that lap both the lands of the State and the boundaries of the international sea. This relationship, at this particular point of the marginal sea, is too close to the vital interest of the Nation in its own boundaries to allow it to be governed by any law but the 'supreme Law of the Land.' " 389 U.S., at 293, 88 S.Ct., at 440.
7
We are fortified in our conclusion that Bonelli's equal-footing analysis was unsound by the fact that its author has likewise rejected it. The dissenting opinion of our Brother Marshall, post, at 382, would sustain the result reached in Bonelli but on a ground explicitly avoided in the Bonelli opinion. The "mystery" or "puzzle" to which our Brother refers, post, at 384, turns out to be nonexistent; in rejecting Bonelli's equal-footing analysis, we are simply refusing to be more Roman than the Romans. The dissent's own abandonment of Bonelli's ratio decidendi is anything but a ringing endorsement of the rule of stare decisis.
8
We think that the insistence of our dissenting Brethren that "federal common law" should be applied to a determination of title in this case, albeit not for the same reason expounded in Bonelli, misapprehends the meaning and significance of the term "common law" as it is used in several of our old cases.
In the generic sense of the term, the "common law" has been defined as:
" 'the body of those principles and rules of action relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England.' " Western Union Telegraph Co. v. Call Pub. Co., 181 U.S. 92, 102, 21 S.Ct. 561, 564, 45 L.Ed. 765 (1901) (citing Black's Law Dictionary).
It is in this descriptive sense that the term is used in the two principal quotations relied upon in the dissenting opinion, New Orleans v. United States, 10 Pet. 662, 717, 9 L.Ed. 573 (1836), and County of St. Clair v. Lovingston, 23 Wall. 46, 68, 23 L.Ed. 59 (1874). In the passage from New Orleans, the Court, simply summarized the accepted British common-law doctrine of accretion. In Lovingston, the Court affirmed the judgment of the Supreme Court of Illinois which had rested upon the proper rule of common law, without any indication that this rule was not the law of Illinois. In light of the treatment of the subject in such later cases as Barney v. Keokuk, Packer v. Bird, Shively v. Bowlby, and Joy v. St. Louis, all discussed in the text, no "rule" requiring the application of "federal common law" to questions of riparian ownership may be deduced from New Orleans and Lovingston. See post, at 387-388.
1
Although the Court rejects the reasoning on which Hughes is based, it refrains from formally overruling Hughes on the ground that that case was not relied on in Bonelli and not cited by the Oregon courts below. Ante, at 377 n. 6. In Bonelli, the Solicitor General urged the Court to find federal law controlling because riparian lands patented by the United States were involved and, under Hughes, federal common law therefore controlled the riparian rights of the landowner. Memorandum for United States as Amicus Curiae 3-4, filed Jan. 2, 1973; and Memorandum for United States as Amicus Curiae 2-3, filed Sept. 20, 1973, in Bonelli Cattle Co. v. Arizona, O.T. 1973, No. 72-397. The petitioner took the same position. Brief for Petitioners 31-34 in Bonelli Cattle Co. v. Arizona, supra. The Bonelli Court did not reach this contention noting that there was some doubt that the land in question was riparian at the time of the federal patent. 414 U.S., at 321 n. 11, 94 S.Ct., at 523. In its eagerness to do away with Bonelli's result as well as its approach, however, today's opinion explicitly concludes that had Bonelli relied on the theory advocated by the petitioner there and the Solicitor General, it would now be rejected. Ante, at 371-372, 378-381.
Nevertheless, the majority suggests that Hughes might still control ocean-front property. Ante, at 377 n. 6. It is difficult to take seriously the suggestion that the national interest in international relations justifies applying a different rule to oceanfront land grants than to other grants by the Federal Government. It is clear that the States have complete title to the lands below the line of mean high tide. See Borax Consolidated, Ltd. v. Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935); 43 U.S.C. §§ 1301(a)(2), 1311. These lands, of course, are the only place where the waters " 'lap both the lands of the State and the boundaries of the international sea.' " Ante, at 377 n. 6, quoting Hughes v. Washington, 389 U.S., at 293, 88 S.Ct., at 440. There are no international relations implications in the ownership of land above the line of mean high tide. See Note, The Federal Rule of Accretion and California Coastal Protection, 48 S.Cal.L.Rev. 1457, 1472 (1975).
2
The cross-petitions for certiorari did not raise the question whether federal law governed the outcome; they were concerned only with whether the Oregon courts properly interpreted the governing federal common law.
The State's petition for certiorari in No. 76-567 stated the question presented as:
"In a typical situation of a navigable river flowing through two channels, where the smaller of the two channels after 20 years of erosive flooding 'suddenly' becomes the main channel, and the other channel eventually becomes unusable, does federal law deprive the public of title to the beds of both channels?"
In No. 75-577, Corvallis Sand & Gravel Co. raised two questions in its petition for certiorari:
"1. Does plaintiff, State of Oregon, have sufficient ownership to maintain statutory ejectment to recover possession of the bed of a navigable fresh water stream where its claim of ownership is based on sovereignty rather than grant and where there is no allegation pleaded and no proof that the public rights of navigation, fishery and related uses are being impaired or interfered with by defendant Corvallis Sand and Gravel Company?
"2. Does plaintiff, State of Oregon, have sufficient ownership to maintain statutory ejectment to recover damages for the removal of sand and gravel from the bed of a navigable fresh water stream where its claim of ownership is based on sovereignty rather than grant and where there is no pleaded allegation or proof that the public rights of navigation, fishery and related uses are being impaired or interfered with by the defendant Corvallis Sand and Gravel Company?"
3
The parties' briefs faithfully mirrored their perceptions of the issues as presented in the petitions for certiorari. Thus, in No. 75-567, the State argued that the public interest requires recognition that the sovereign title in a riverbed is "full and complete" and that protecting that title requires that federal common law apply avulsion principles against a State only in very rare cases. Alternatively, the State argued that if classic avulsion principles applied, it still should receive title to the contested land. Corvallis Sand & Gravel responded by challenging the State's right to ownership of the riverbed under common law and by maintaining that the factfindings of the lower courts were both correct and not subject to review in this Court. In No. 76-577, the parties disputed Corvallis' contention that the State's title is limited to protection of navigation, fishery, and related uses and cannot be the basis for an ejectment action when those uses are not affected. Both parties assumed that federal common law governed the case.
4
Counsel for the State of California, representing the amici States, argued that Bonelli should be overruled. Neither party addressed that issue except in response to questions from the Court. In response to those questions, counsel for both parties stated that federal common law should govern this case. Tr. of Oral Arg. 14, 28, 33.
5
For convenience, I will use "riparian" in place of "riparian or littoral" for the remainder of this opinion.
6
Cited ante, at 375, 379-380.
7
In Bonelli, the question was ownership of relicted land, which is land exposed by the subsidence of the water. The law of reliction is identical to the law of accretion. 3 American Law of Property § 15.26 (A. J. Casner ed. 1952). In the present case, the State claims title to land by virtue of the doctrine of erosion, the converse of accretion. Corvallis Sand & Gravel resists by arguing that the change in the river's course was not gradual, as erosion and accretion require, but sudden. A sudden, or avulsive, change does not effect a shift in boundaries. These doctrines form a coherent system. It would make no sense to hold that the federal doctrine of accretion must be applied to the benefit of a federal riparian grantee but that the federal doctrine of avulsion need not be applied.
8
Cited ante, at 371, 372, 377.
9
Cited ante, at 380.
10
Cited ante, at 374, 379.
11
The language in Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565 (1845), on which the majority heavily relies to prove that Congress had no such power, see ante, at 372-374, was dismissed as dictum by the Shively Court. See 152 U.S., at 28, 14 S.Ct., at 28.
12
The majority also quotes the Shively Court's statement that federal grants " 'leave the question of the use of the shores by the owners of uplands to the sovereign control of each State.' " Ante, at 379, quoting 152 U.S., at 58, 14 S.Ct. at 569. It is clear from the context that by "shores" the Shively Court meant the land below the high-water mark. The State, as owner of that land, controls it. The Court did not suggest that the State was free to diminish the title of the upland owner by denying his right to an ambulatory boundary if the "shores" recede or the uplands grow.
13
The majority's assertion that the rule of New Orleans v. United States, 10 Pet. 662, 9 L.Ed. 573 (1836), and County of St. Clair v. Lovingston, 23 Wall. 46, 23 L.Ed. 59 (1874), is merely a description of the English common law, ante, at 380-381, n. 8, is belied by the Shively Court's affirmation of the independence of the riparian holder's rights from the law governing the lands beneath the water. The majority chooses not to discuss this aspect of Shively.
Joy v. St. Louis, 201 U.S. 332, 342, 343, 26 S.Ct. 478, 481, 50 L.Ed. 776 (1906), cited ante, at 377, does contain language which supports the conclusions reached by the majority. That case, however, did not involve lands in which a grantee of the United States held or claimed title. The land in that case was granted by Spain. Congress confirmed the grant, but by so doing it added nothing to the title conferred by Spain. See Joy v. St. Louis, 122 F. 524 (ED Mo.1903), aff'd, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776 (1906); United States v. Washington, 294 F.2d 830, 833 (CA9 1961), cert. denied, 369 U.S. 817, 82 S.Ct. 828, 7 L.Ed.2d 783 (1962).
14
When the papers before the Court indicate that a choice-of-law question will be presented, the Solicitor General sometimes prepares an amicus brief on his own motion. See, e. g., Memorandum for United States as Amicus Curiae and Brief for United States as Amicus Curiae in Free v. Bland, O.T. 1961, No. 205. In the present case, of course, the Solicitor General had no notice from the petitions for certiorari that the issue decided today would be raised. See n. 2, supra.
| 910
|
429 U.S. 396
97 S.Ct. 581
50 L.Ed.2d 574
Cecle G. PEARSON, Appellant,v.W. P. DODD et al.
No. 75-1318.
Jan. 12, 1977.
Rehearing Denied Feb. 28, 1977. See 430 U.S. 911, 97 S.Ct. 1186.
PER CURIAM.
1
When appellant failed to pay 1961 real estate taxes pertaining to her one-quarter interest in the oil and gas in 68 acres of land in Kanawha County, W. Va., the interest became subject to transfer to the State under West Virginia statutory procedures that afford notice to the landowner only through the posting of a delinquency list on the county courthouse door and the publication of the list in local newspapers. W.Va.Code §§ 11A-2-10a, 11A-3-2 (1974). The interest was sold to the State under these procedures in 1962. West Virginia Code § 11A-3-8 (1974), gave appellant a statutory entitlement to redeem the interest at any time within 18 months of the date of the state purchase, but appellant did not redeem during that period. The State thereafter decided to sell the interest and, as required by West Virginia law, commenced a suit in State Circuit Court to effect a sale. The suit resulted in the conveyance in 1966, by tax deed, of the oil and gas interest to appellee W. P. Dodd. The only notice of this sale was by way of publication in two local newspapers, pursuant to § 11A-4-12 (1974). Over two years later, in July 1968, appellant attempted to pay the State Auditor a sum of money to redeem the interest. Appellant then brought this action in state court to quiet title. The Circuit Court rendered judgment for appellees. The West Virginia Supreme Court of Appeals affirmed, 221 S.E.2d 171 (W.Va.1975). We noted probable jurisdiction. 426 U.S. 946, 96 S.Ct. 3164, 49 L.Ed.2d 1182 (1976).
2
The Jurisdictional Statement phrased the due process question presented by the appeal as whether notice by publication of the tax sale was constitutionally deficient, but was unclear whether the challenge was directed to the 1962 sale to the State or to the 1966 sale to appellee Dodd. At oral argument counsel for appellant made clear, however, that her challenge was not addressed to the procedures for notice attending the 1962 transfer of the interest to the State, Tr. of Oral Arg. 21-23, but solely to the procedures for notice attending the 1966 sale of the interest by the State to appellee Dodd. Indeed, we were repeatedly informed that the 1962 sale to the State was not even "an issue in this case." Id. at 22, 25, 26. But under state law absolute title had vested in the State at the expiration of the 18-month period after the 1962 sale during which appellant might have exercised but did not exercise her right to redeem: § 11A-4-12 expressly provides that in such circumstance "the State has absolute title to all . . . land sold to the State for nonpayment of taxes . . . (which has) become irredeemable. . . ." Appellant thus has no constitutionally protected property or entitlement interest upon which she may base a challenge of constitutional deficiency in the notice provisions attending the 1966 sale to appellee Dodd. The appeal is therefore dismissed for want of a properly presented federal question.
3
So ordered.
| 89
|
50 L.Ed.2d 530
97 S.Ct. 619
429 U.S. 338
G. M. LEASING CORP., Petitioner,v.UNITED STATES et al.
No. 75-235.
Argued Oct. 4, 1976.
Decided Jan. 12, 1977.
Syllabus
The Internal Revenue Service (IRS), having investigated the income tax liability of a taxpayer who was a fugitive from justice, determined deficiencies for two taxable years, and because of the taxpayer's failure to file proper returns and his fugitive status, made jeopardy assessments pursuant to § 6861(a) of the Internal Revenue Code of 1954. Petitioner corporation was determined to be the alter ego of the taxpayer. Thereafter, pursuant to a decision to levy upon and seize automobiles registered in petitioner's name in partial satisfaction of the assessments against the taxpayer, agents made warrantless seizures of several such automobiles from property in which petitioner had no interest. For the purpose of levying on other property subject to seizure, they also went to petitioner's office, a cottage-type building, and made a warrantless forced entry. Pending further information as to whether the cottage was an office or a residence, the agents made no initial seizures, but two days later they again entered the cottage without a warrant and seized books, records, and other property. Thereafter petitioner, claiming that it was not the taxpayer's alter ego, that the assessment was invalid, and that the seizures of the automobiles and the contents of the office violated the Fourth Amendment, instituted this suit, seeking return of the automobiles, suppression of evidence obtained from the seized documents, and damages from the IRS agents. The District Court entered judgment for petitioner, finding that the IRS agents had committed illegal searches and seizures in violation of the Fourth Amendment. The Court of Appeals for the most part reversed, ruling that the assessments were valid, that the evidence conclusively established that petitioner was the taxpayer's alter ego, and that the warrantless searches and seizures were not unconstitutional. Section 6331(a) of the 1954 Code authorizes the IRS to collect taxes "by levy upon all property and rights to property" belonging to a person who "neglects or refuses to pay" any tax, and § 6331(b) defines "levy" as including "the power of distraint and seizure by any means." Held:
1. This Court granted certiorari limited to the Fourth Amendment issue and thus accepts the Court of Appeals' determinations that the assessments and levies were valid and that petitioner was the taxpayer' s alter ego. Petitioner does not challenge any other aspect of probable cause to believe that the items seized were properly subject to seizure, and therefore the only question before the Court is whether warrants were required. P. 351.
2. The warrantless automobile seizures, which occurred in public streets, parking lots, or other open areas, involved no invasion of privacy and were not unconstitutional. Murray's Lessee v. Hoboken Land & Improv. Co., 18 How. (59 U.S.) 272, 15 L.Ed. 372. Pp. 351-352.
3. The warrantless entry into the privacy of petitioner's office violated the Fourth Amendment, since "except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." Camara v. Municipal Court, 387 U.S. 523, 528-529, 84 S.Ct. 1727, 1730-31, 18 L.Ed.2d 930. Pp. 352-359.
(a) Business premises are protected by the Fourth Amendment, and corporations have Fourth Amendment rights. The intrusion here was based, not on the nature of petitioner's business, its license, or regulation of its activities, but on the ground that its assets were seizable to satisfy tax assessments, which does not justify depriving petitioner of its Fourth Amendment rights simply because it is a corporation. Pp. 353-354.
(b) Neither the history of the common law and the laws in several States prior to the adoption of the Bill of Rights nor the case law since that time justifies creation of a broad exception to the warrant requirement for intrusions in furtherance of tax enforcement. Pp. 354-356.
(c) Section 6331(b) must be read as authorizing only warrantless seizures as opposed to warrantless searches. Pp. 356-358.
(d) This case does not fall under the "exigent circumstances" exception to the warrant requirement, as is clear from the agents' own delay in making the entry in which the records were seized. Pp. 358-359.
4. Of the various remedy issues raised by petitioner, only the issue of damages against the individual agents need be addressed under the limited grant of certiorari and in the present posture of the case. Petitioner has shown violation of its constitutional rights. Whether, as the Government contends, petitioner is not entitled to money damages if the agents acted in good faith should be considered by the courts below in the light of all the facts, including IRS procedures based upon Murray's Lessee, supra, the existence of proof of any injury to petitioner resulting from the entry and temporary seizure of books and records, and the immunity issue reserved in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619. Pp. 359-360.
514 F.2d 935, affirmed in part, reversed in part, and remanded.
Richard J. Leedy, Salt Lake City, Utah, for petitioners.
Sol. Gen. Robert H. Bork, Washington, D. C., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
We granted certiorari in this case, 423 U.S. 1031, 96 S.Ct. 561, 46 L.Ed.2d 404 (1975), limited to the Fourth Amendment issue arising in the context of seizures of property in partial satisfaction of income tax assessments.1
2
* Petitioner G. M. Leasing Corp. is a Utah corporation organized in April 1972; among its stated business purposes is the leasing of automobiles. George I. Norman, Jr., although apparently not an incorporator, officer, or director of petitioner, was its general manager.
3
In 1971 Norman was tried and convicted in the United States District Court for the District of Colorado on two counts of aiding and abetting a misapplication of funds from a federally insured bank, in violation of 18 U.S.C. §§ 2 and 656. He was sentenced to two concurrent two-year terms of imprisonment. On appeal, his conviction was affirmed. United States v. Cooper, 464 F.2d 648, 651-652 (CA10 1972). This Court denied certiorari. 409 U.S. 1107, 93 S.Ct. 901, 34 L.Ed.2d 688 (1973).
4
Norman and his wife, on November 15, 1971,2 filed a joint income tax Form 1040 for the calendar year 1970 on which, apart from their names, address, social security numbers, occupations, and dependents, they indicated only that their tax for that year "(e)stimated," was $280,000. The sum of $289,800 was transmitted when the form was filed and was placed by the Internal Revenue Service in a suspense account for future credit. Apart from the naked figure of estimated tax, the return contained no information as to income or deductions. App. 94.
5
The Normans also sought and were granted an extension of time within which to file their return for the calendar year 1971. A check for $405,125 was given to the Service on April 15, 1972, for application on their 1971 tax. This check evidently was dishonored. Although further extensions of time were granted, neither of the Normans ever filed a 1971 return.
6
In October 1972, after Norman's conviction was affirmed by the Tenth Circuit, the Service assigned the Norman account for 1970 and 1971 to Agent P. J. Clayton for investigation. Mr. Clayton, however, took no immediate action. Id., at 66; Tr. of Oral Arg. 24-25.
7
In March 1973, after Norman's petition for a writ of certiorari had been denied, and after his petition for rehearing had also been denied, 410 U.S. 959, 93 S.Ct. 1414, 35 L.Ed.2d 695 (1973), he surrendered to the United States Marshal for the serving of his sentence. By a ruse, however, he immediately disappeared. Tr. of Oral Arg. 6. Norman thereupon became a fugitive from justice; he was still one at the time of the oral argument. App. 15; Brief for Petitioners 5; Tr. of Oral Arg. 5-6.
8
Upon Norman's becoming a fugitive, the Service activated its investigation. On March 19, it determined deficiencies in Norman's income tax liability for 1970 and 1971 in the amounts of $406,099.34 and $545,310.59, respectively.3 App. 95. These were based solely on information from third parties concerning the amount of stock sales Norman made through various brokerage houses. Id., at 30, 67.4 Because of Norman's failure to file appropriate returns and because of his fugitive status, collection of the taxes as so determined was regarded by the Service as in jeopardy; the deficiencies, therefore, were assessed forthwith pursuant to the authority granted by § 6861(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 6861(a).5
9
The following day revenue agents called at the Norman residence in Salt Lake City to endeavor to collect the taxes. Mrs. Norman answered the door. The agents informed her of the jeopardy assessments and demanded payment. No payment was forthcoming, and Mrs. Norman suggested that the agents get in touch with her attorney. App. 56. Thereafter, pursuant to their authority under § 6331 of the Code, the agents filed notice of tax liens with the Salt Lake County Recorder's Office and levied on a bank account of Norman. App. 95, 58.
10
While the agents were at the Norman residence, they observed automobiles parked in the driveway. Later, upon checking with the Utah Motor Vehicle Division, they learned that these vehicles were registered in the name of petitioner or in the name of another corporation owned by Norman, and that no automobile was registered in Norman's name or in that of his wife. Id., at 73-74. They also learned that petitioner had no license to conduct business within Salt Lake County and had no telephone listing. Id., at 74. It was further ascertained that, pursuant to the request of the Utah Department of Employment Security, petitioner had filed a Status Report. That report described the corporation's principal business activity as "leasing Luxury Automobiles, Boats, etc." It recited that the corporation's "average number of employees" was zero and that it had paid no wages while it was in existence during the last three quarters of 1972 or thus far in 1973. Id., at 91-92. On its Utah Sales and Use Tax Return for the second quarter of 1972, the corporation reported no sales. Id., at 93. The agents regarded the automobiles seen at the Norman residence as "show" or "collector" cars and not the type "that would normally be used in a leasing business." Id., at 74.
11
All these facts suggested to the agents that petitioner corporation was not engaged in any business activity but, instead, was Norman's alter ego and a repository of at least some of his personal assets. The agents consulted with the Service's Regional Counsel. With his concurrence, the conclusion was drawn that the assets of the corporation actually belonged to Norman. Accordingly, the decision was made to levy upon and seize automobiles titled in petitioner's name in partial satisfaction of the assessments against Norman. Id., at 75-76.
12
On or about March 21, two days after the jeopardy assessments, revenue officers, without a warrant, seized several automobiles. Among them were a 1972 Stutz, a Rolls Royce Phantom V, a 1930 Rolls Royce Phantom I, two 1971 Stutzes, and a Jaguar. Three were taken at two different locations in Salt Lake City; two at the Century Plaza parking lot in Los Angeles, Cal.; and one near Norman's residence in Salt Lake City. Id., at 121, 129; Tr. of Oral Arg. 13-14. None of the cars was on property in which petitioner had an interest. All were registered in petitioner's name. App. 75-76. The officers left a Chevrolet and a station wagon for the personal use of Mrs. Norman and her family.6 Id., at 58.
13
Also on March 21, revenue officers went to petitioner's office in Salt Lake County to levy on property subject to seizure, including the building itself. Id., at 19. They had information that one, and possibly two, luxury automobiles might be there. Upon learning that a car was in the garage on the premises, they telephoned their superior, Bert Applegate, and asked him to come out to assist. Id., at 77-79. The premises consisted of a cottage-type building and the garage. When Applegate arrived, a locksmith was there. He already had removed the lock from the garage door at the direction of the officers. A Stutz automobile was inside. The locksmith also had removed the lock on the cottage's rear door. Id., at 80-81.
14
Applegate entered the cottage. He observed that its outward appearance was such that it could be a residence. He noticed a kitchen. He instructed the officers not to proceed with the seizure of any property there until the status of the cottage could be confirmed.7 Id., at 81, 23-24. The officers then left the cottage without taking anything, and its lock was replaced. Id., at 82.
15
While the officers were in the cottage, Norman's son, George I. Norman, III, age 19, and listed as a dependent on the 1970 Form 1040, appeared. He told the officers that the Stutz belonged to the petitioner corporation, and not to Norman. Id., at 80, 34. He testified that he was living at the cottage "as security." Id., at 34. He was asked to provide evidence as to the car's ownership. A decision was made not to seize the automobile at that time.
16
Information then came to Applegate, primarily from a Mr. Redd who was a contractor for Norman, that the cottage was a place of business and not a residence. Id., at 79. In addition, there was activity at the cottage that night; the lights were on and boxes were being moved. The next morning the Stutz was not in the garage.8 Id., at 83. Sometime during the next two days, a decision was made to seize the cottage, its furnishings and any other assets there.9 On March 23,10 agents, acting without a warrant, and with the assistance of locksmiths and the equipment of a private van and storage firm, entered the cottage and removed its remaining contents, including furnishings and books and records. An inventory was made of the property so seized. The agents hoped to examine the books and records to see if they contained stock certificates or information concerning the location of other assets. The Regional Counsel, however, instructed them to pack the books and records, seal the boxes, and remove them to a safe storage place. Id., at 83-88.
17
In May, petitioner corporation instituted this suit. By its amended complaint it asserted a claim for wrongful levy, with a request for the return of the automobiles; a claim for suppression of all evidence obtained from the seized documents; and a claim against the agents for damages. Id., at 105-112. It alleged that the assessments were arbitrary and capricious, that petitioner was not an alter ego of Norman, and that the levy upon its premises and the contents violated the Fourth Amendment. Ibid.
18
Shortly thereafter, the Service returned to the cottage the originals of the records and documents that had been seized. In the meantime, however, they had been photocopied.11 By a second amendment to petitioner's complaint, id., at 124, punitive damages, among other relief, were requested.
19
Norman's son filed a complaint in intervention, id., at 112-117, alleging essentially the same facts and requesting similar relief. The District Court allowed his intervention. The Government then filed a counterclaim seeking foreclosure of the tax liens against the property held in petitioner's name. Id., at 127-134.
20
At the ensuing trial before the court without a jury there was testimony that Norman himself originally held title to some of the automobiles registered in petitioner's name, id., at 37; that petitioner had no employees and did not lease any cars, id., at 37, 39; that petitioner's only assets were luxury or vintage model automobiles; that the cars had not been transferred to it until at or near the end of 1972; and that petitioner never issued any stock, held any director's meetings, or engaged in any business.12 Id., at 43-45.
21
The District Court entered judgment for petitioner and for the intervenor. It found that the premises in question were the offices of petitioner and the residence of the intervenor; that the revenue-officer defendants had no search warrant; that they forcibly entered the premises on March 23 and again on March 25;13 that they made the entry, search, and seizure "knowing full well that they were violating the rights" of petitioner, the intervenor, "and others"; that Agent Clayton committed the entry "maliciously"; that the defendants returned the books and records that had been seized but photocopied them and retained the photocopies; that the defendants levied upon and seized all the assets of petitioner, including seven automobiles and a bank account; that they disposed of two of the automobiles and stored the others in Salt Lake City; that the assessments of taxes, penalties, and interest against Norman and his wife for 1970 and 1971 were erroneous; that Norman and his wife had no liability for federal income tax, penalties, or interest for those years; that petitioner had "engaged in substantial business activity in preparation for its business purpose of leasing automobiles"; that it was not controlled solely by Norman or his wife; that it was not an alter ego of Norman or his wife; and that it was not their nominee. The court concluded that the revenue-officer defendants committed an illegal search and seizure of petitioner's offices and the intervenor's residence, in violation of the Fourth Amendment; that the photocopies of the seized books and records in the possession of the Service should be destroyed because any use of them would be illegal; that petitioner and the intervenor were entitled to general and punitive damages in amounts to be determined; that the Government's counterclaim should be dismissed with prejudice; that the Service should return all the seized assets of petitioner and of the intervenor; and that judgment should be awarded against the United States in favor of petitioner for the value of the two automobiles that had been sold. Id., at 136-142. Judgment, including injunctive relief for the return of the automobiles and the books and records, and for the destruction of the photocopies, was entered accordingly. Id., at 142-144.
22
The Court of Appeals, for the most part, reversed. 514 F.2d 935 (CA10 1975). It ruled that the evidence conclusively established that petitioner was Norman's alter ego so that its assets could be seized to satisfy Norman's income tax liability; that the District Court's finding to the contrary was clearly erroneous; that petitioner had not sustained its burden of proving the assessments to be erroneous; and that the trial court erred in invalidating the assessments and in dismissing the Government's counterclaim. In regard to the claim of illegal search and seizures, the Court of Appeals held:
23
"The refusal to pay authorized appellants to collect the tax by levy, and this included the power of 'seizure by any means.' Thus appellants were acting pursuant to statute and did not commit an illegal search. The trial court's order returning the assets and suppressing the documents is improper." (Footnote omitted.) Id., at 941.
24
The court also ruled that there was no evidence to support the trial court's finding that Clayton's participation "was of a malicious character." Ibid. In accord with a concession by the Government, the Court of Appeals affirmed the trial court's judgment insofar as it ordered the return of certain shares of stock to the intervenor.14
II
25
A. Section 6331(a) of the 1954 Code authorizes the Secretary or his delegate to collect taxes "by levy upon all property and rights to property" belonging to a person who "neglects or refuses to pay" any tax "or on which there is a lien . . . for the payment of such tax."15 Section 6331(b), and § 7701(a)(21) as well, define "levy" as including "the power of distraint and seizure by any means." Both real estate and personal property, tangible and intangible, are subject to levy. Levy upon tangible property normally is effected by service of forms of levy or notice of levy and physical seizure of the property. Where that is not feasible, the property is posted or tagged. Because intangible property is not susceptible of physical seizure, posting, or tagging, levy upon it is effected by serving the appropriate form upon the party holding the property or rights to property. See Treas.Reg. § 301.6331-1(a)(1), 26 CFR § 301.6331-1(a)(1) (1976). See also Phelps v. United States, 421 U.S. 330, 335-337, 95 S.Ct. 1728, 1731-32, 44 L.Ed.2d 201 (1975). And the Court has recognized that compulsion on the part of the Service occasionally is required in the enforcement of the revenue laws. See United States v. Bisceglia, 420 U.S. 141, 145, 95 S.Ct. 915, 918, 43 L.Ed.2d 88 (1975). Indeed, one may readily acknowledge that the existence of the levy power is an essential part of our self-assessment tax system and that it enhances voluntary compliance in the collection of taxes that this Court has described as "the lifeblood of government, and their prompt and certain availability an imperious need." Bull v. United States, 295 U.S. 247, 259, 55 S.Ct. 695, 699, 79 L.Ed. 1421 (1935).
26
Under § 6321 of the Code,16 the assessments against Norman were a lien in favor of the United States upon all property belonging to Norman. If petitioner was Norman's alter ego, it had no countervailing effect for purposes of his federal income tax. Griffiths v. Commissioner, 308 U.S. 355, 60 S.Ct. 277, 84 L.Ed. 319 (1939); Higgins v. Smith, 308 U.S. 473, 476, 60 S.Ct. 355, 357, 84 L.Ed. 406 (1940). It would then follow that the Service could properly regard petitioner's assets as Norman's property subject to the lien under § 6321, and the Service would be empowered, under § 6331, to levy upon assets held in petitioner's name in satisfaction of Norman's income tax liability. See United States v. Plastic Electro-Finishing Corp., 313 F.Supp. 330, 333-334 (EDNY 1970), aff'd, 71-1 USTC P 9421 (CA2 1971).
27
B. Our grant of certiorari was limited to the Fourth Amendment issue, and we declined to review petitioner's and Norman's son's claims that the assessments and levies should have been voided and that petitioner was not Norman's alter ego. Pet. for Cert. 2, 3.17 We therefore approach this case accepting the Court of Appeals' determinations that the assessments and levies were valid and that petitioner was Norman's alter ego. Those facts necessarily establish probable cause to believe that assets held by petitioner were properly subject to seizure in satisfaction of the assessments. Petitioner does not claim that there was no probable cause to believe that the automobiles were held by petitioner, nor does it claim that there was no probable cause to believe that its offices would contain other seizable goods. There being probable cause for the search and seizures, the only questions before the Court are whether warrants were required to make "reasonable" either the seizures of the cars or the entry into and seizure of goods in the cottage.
28
C. The seizures of the automobiles in this case took place on public streets, parking lots, or other open places, and did not involve any invasion of privacy. In Murray's Lessee v. Hoboken Land & Improv. Co., 18 How. (59 U.S.) 272, 15 L.Ed. 372 (1856), this Court held that a judicial warrant is not required for the seizure of a debtor's land in satisfaction of a claim of the United States. The seizure in Murray's Lessee was made through a transfer of title which did not involve an invasion of privacy. The warrantless seizures of the automobiles in this case are governed by the same principles and therefore were not unconstitutional. See also Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924) (liquor seized in open field).18
29
D. The seizure of the books and records, however, involved intrusion into the privacy of petitioner's offices. Significantly, the Court has said:
30
"(O)ne governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967).
31
See Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971); id., at 512, 91 S.Ct. at 2061 (White, J., concurring and dissenting); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925).
32
The respondents do not contend that business premises are not protected by the Fourth Amendment. Such a proposition could not be defended in light of this Court's clear holdings to the contrary. See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Go-Bart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). Nor can it be claimed that corporations are without some Fourth Amendment rights. Go-Bart Co. v. United States, supra; Silverthorne Lumber Co. v. United States, supra; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 205-206, 66 S.Ct. 494, 503-04, 90 L.Ed. 614 (1946); Hale v. Henkel, 201 U.S. 43, 75-76, 26 S.Ct. 370, 379, 50 L.Ed. 652 (1906). Cf. California Bankers Assn. v. Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); Federal Trade Comm'n v. American Tobacco Co., 264 U.S. 298, 305-306, 44 S.Ct. 336, 337, 68 L.Ed. 696 (1924); Wilson v. United States, 221 U.S. 361, 375-376, 31 S.Ct. 538, 542, 55 L.Ed. 771 (1911); Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 553-554, 28 S.Ct. 178, 181, 52 L.Ed. 327 (1908).
33
The Court, of course, has recognized that a business, by its special nature and voluntary existence, may open itself to intrusions that would not be permissible in a purely private context. Thus, in United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), a warrantless search of a locked storeroom during business hours, pursuant to the inspection procedure authorized by the Gun Control Act of 1968, 18 U.S.C. § 923(g), was upheld:
34
"When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection." 406 U.S., at 316, 92 S.Ct. at 1596.
35
See also Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (Congress has broad authority to fashion standards of reasonableness for searches and seizures to regulate the liquor industry but failed in that case to authorize a warrantless search).
36
In the present case, however, the intrusion into petitioner's privacy was not based on the nature of its business, its license, or any regulation of its activities. Rather, the intrusion is claimed to be justified on the ground that petitioner's assets were seizable to satisfy tax assessments. This involves nothing more than the normal enforcement of the tax laws, and we find no justification for treating petitioner differently in these circumstances simply because it is a corporation.
37
The respondents argue that there is a broad exception to the Fourth Amendment that allows warrantless intrusions into privacy in the furtherance of enforcement of the tax laws. We recognize that the "Power to lay and collect Taxes" is a specifically enunciated power of the Federal Government, Const., Art. I, § 8, cl. 1, and that the First Congress, which proposed the adoption of the Bill of Rights, also provided that certain taxes could be "levied by distress and sale of goods of the person or persons refusing or neglecting to pay." Act of Mar. 3, 1791, c. 15, § 23, 1 Stat. 204. This, however, relates to warrantless seizures rather than to warrantless searches. It is one thing to seize without a warrant property resting in an open area or seizable by levy without an intrusion into privacy, and it is quite another thing to effect a warrantless seizure of property, even that owned by a corporation, situated on private premises to which access is not otherwise available for the seizing officer.
38
Indeed, one of the primary evils intended to be eliminated by the Fourth Amendment was the massive intrusion on privacy undertaken in the collection of taxes pursuant to general warrants and writs of assistance.19 As Madison argued, urging the adoption of a Bill of Rights to restrain the Federal Government:
39
"The General Government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the Legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the State Governments had in view? If there was reason for restraining the State Governments from exercising this power, there is like reason for restraining the Federal Government." 1 Annals of Cong. 438 (1834 ed.).
40
The respondents urge that the history of the common law in England and the laws in several States prior to the adoption of the Bill of Rights support the view that the Fourth Amendment was not intended to cover intrusions into privacy in the enforcement of the tax laws. We do not find in the cited materials anything approaching the clear evidence that would be required to create so great an exception to the Fourth Amendment's protections against warrantless intrusions into privacy.
41
The respondents also rely upon certain dicta in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)20 (subpoena of private papers impermissible). But see Fisher v. United States, 425 U.S. 391, 408-411, 96 S.Ct. 1569, 1579-80, 48 L.Ed.2d 39 (1976), and Andresen v. Maryland, 427 U.S. 463, 471-472, 96 S.Ct. 2737, 2744, 49 L.Ed.2d 627 (1976)). We do not find in Boyd any direct holding that the warrant protections of the Fourth Amendment do not apply to invasions of privacy in furtherance of tax collection. Insofar as language in Boyd might be read so to state, we decline to follow those dicta into rejection of the basic governing principle that has shaped Fourth Amendment law.
42
Finally, the respondents argue that warrantless searches are justified by congressional enactment, as were the searches in Biswell and Colonnade. The statute, § 6331(b) of the Code, 26 U.S.C. § 6331(b), authorizes "distraint and seizure by any means." See n. 15, supra. Read narrowly, it authorizes the use of every means to deprive the taxpayer of use, enjoyment, or title to property (e. g., transferring title, asportation, immobilization). It does not refer to warrantless intrusions into privacy. The respondents, however, would have us read the statute to authorize such warrantless intrusions. They assert that a statute of that kind is permissible in light of the considerations discussed in Camara and See. Examination of the statute shows that quite the opposite is true.
43
The respondents recognize that one of the Court's critical concerns in Camara and See was the discretion of the seizing officers. Brief for Respondents 66. Yet § 6331 clearly gives the Secretary or his delegate discretion as to what property to seize. If more than one location is involved, the Secretary will choose which dwelling will be invaded. If property is to be found both in public places and in private areas, the Secretary may choose which to seize. This hardly can be called a restraint on discretion. The respondents also recognize the concern with the existence of questions of disputed fact. They argue that in the seizure situation there are no such questions; yet in the present case the agents' confusion over whether the premises were an office or a residence demonstrates the contrary.
44
The respondents assert that the burden on the Government of obtaining a warrant is a relevant factor. Brief for Respondents 67-68. They suggest that the burden is great here because the Government is dealing with persons who may attempt to put their property beyond reach. Yet the statute authorizes distraint and seizure whenever a taxpayer neglects or refuses to pay his tax, and regardless of any indication of risk of concealment. The statute simply does not focus on situations involving a need for rapid action.
45
The respondents argue that the interest in the collection of taxes is such as to bring this case within the reasoning of Biswell and Colonnade. Those cases involved voluntary participation in a highly regulated activity. Section 6331, however, covers all defaults on all taxes, and we are unwilling to hold that the mere interest in the collection of taxes is sufficient to justify a statute declaring per se exempt from the warrant requirement every intrusion into privacy made in furtherance of any tax seizure.
46
The respondents suggest that the privacy interest in business premises is less than that in a private home. Even if correct, the assertion is irrelevant with respect to the intent of the statute, for the statute makes no distinction between business properties and dwelling areas. If it authorizes entries at all, it authorizes entries into both business premises and private homes.
47
The respondents offer no legislative history in support of their reading of § 6331, and to give the statute that reading would call its constitutionality into serious question. We therefore decline to read it as giving carte blanche for warrantless invasions of privacy. Rather, we give it its natural reading, namely, as an authorization for all forms of seizure, but as silent on the subject of intrusions into privacy.
48
The intrusion into petitioner's office is therefore governed by the normal Fourth Amendment rule that "except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." Camara v. Municipal Court, 387 U.S., at 528-529, 87 S.Ct. at 1731.
49
As an alternative to their argument that a new exception to the warrant requirement should be recognized, the respondents assert that the facts of this case bring it within the "exigent circumstances" exception to the warrant requirement.21 The agents' own actions, however, in their delay for two days following their first entry, and for more than one day following the observation of materials being moved from the office, before they made the entry during which they seized the records, are sufficient to support the District Court's implicit finding that there were no exigent circumstances in this case.
50
We therefore conclude that the warrantless entry into petitioner's office was in violation of the commands of the Fourth Amendment.
III
51
This takes us to the issue of remedy. Specifically, petitioner, by its second amended complaint, prayed for (a) the return of the photocopies of the books and records; (b) the return of the automobiles; (c) a declaration that petitioner is not the alter ego of Norman or of Mrs. Norman; (d) the suppression of all evidence obtained from the books and records; (e) the suppression of the automobiles as evidence; (f) the release of all levies; and (g) general and punitive damages against the individual defendant-agents. App. 123-124.
52
The alter ego issue, as has been noted, was denied review. The books and records were returned, and the photocopies concededly have been destroyed; that claim, thus, is moot. We have decided the issue of the legality of the seizure of the automobiles adversely to petitioner. The suppression issue, as to the books and records, obviously is premature and may be considered if and when proceedings arise in which the Government seeks to use the documents or information obtained from them. See Meister v. United States, 397 F.2d 268, 269 (CA3 1968); Hill v. United States, 346 F.2d 175 (CA9), cert. denied, 382 U.S. 956, 86 S.Ct. 433, 15 L.Ed.2d 361 (1965). And the irreparable injury required to support a motion to suppress, under Fed.Rule Crim.Proc. 41(e), on equitable grounds in advance of any proceedings, has not been demonstrated. Hunsucker v. Phinney, 497 F.2d 29, 34 (CA5 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975).
53
This leaves only the issue of damages against the individual agents. The District Court found that Agent Clayton "maliciously committed said forced entry, and search and seizure," App. 138, and concluded that he and other individual defendants acted "knowing full well that they were violating the rights of" petitioner. Ibid. It concluded that petitioner was entitled to judgment for those actions. The Court of Appeals, in the context of its holding that the entry and search were not illegal, ruled that the finding of maliciousness on the part of Clayton was unsupported by any evidence in the record and was clearly erroneous. 514 F.2d, at 940-941. It also reversed the judgment awarding petitioner damages. Id., at 942.
54
We have held above, however, that a warrant should have been obtained, under the circumstances of this case, before the forcible entry was effected. This brings into focus and for consideration this Court's decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the reservation there of the immunity question. The Government suggests that, assuming a violation of the Fourth Amendment by the agents, petitioner is not entitled to money damages if the agents acted in good faith; that good faith was supported by the "apparent fact" that the agents' conduct was in conformity with standard Service procedures based upon Murray's Lessee, supra ; and that the record justifies the conclusion that the agents acted in good faith. That may well be, but we conclude that this aspect of the facts, the existence of proof of any injury to petitioner resulting from the entry and the temporary seizure of the books and records, and the immunity issue all should be addressed in the first instance by the Court of Appeals and, if it so directs, by the District Court.
55
The judgment of the Court of Appeals is therefore affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
56
It is so ordered.
57
Mr. Chief Justice BURGER, concurring.
58
While I concur in the opinion of the Court, it may be useful to note that the factual setting of this case provides what seems, to me, a classic illustration of the dividing line between an impermissible, warrantless entry and one permissible under the "exigent circumstances" exception to the Fourth Amendment warrant requirement.
59
After their initial entry into, and retreat from, the petitioner's office-cottage, the IRS agents assigned to the investigation of the fugitive Norman's tax liability placed the premises under 24-hour surveillance. One night during the course of this surveillance, the agents observed cartons and other materials being removed from the premises by persons unknown to them. Against the background facts, such surreptitious nighttime activity constituted an exigent circumstance that would have justified an immediate seizure of the materials being moved in order to protect the interests of the United States. This is especially so since here the premises were controlled by the alter ego of an individual who was not only a delinquent taxpayer, but who was, at the time, a fugitive from justice. Rather than acting immediately, however, the agents chose to wait for approximately a day and a half to two days before making their entry. I agree with the conclusion that there were no exigent circumstances on these facts; however, the Court holds no more than that the agents' delay after observing these highly suspicious events makes that exception to the warrant requirement unavailable to them. By failing to act at once, the exigency was dissipated, and I do not understand our opinion to imply, in any way, that the removal of cartons, which could reasonably have contained relevant records needed by the Government, would not have been an exigent circumstance permitting immediate seizure without the warrant required by the Fourth Amendment.
1
The Fourth Amendment reads:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
2
Four extensions of time for filing had been granted. App. 99.
3
At the same time, the Service determined deficiencies in Mrs. Norman's income tax liability for 1970 and 1971 in the amounts of $69,265.04 and $84,873.50, respectively. Id., at 96. Those deficiencies are not at issue in this case.
4
Agent Clayton, called as a witness for the petitioner in the present case, on cross-examination answered "No" to the question whether he was "able to get any cooperation at all" from Mr. Norman. Id., at 30. When later called as a witness on behalf of the respondents, Clayton also gave a negative answer to the question whether he had received "any information from the taxpayer or his accountant or representative." Id., at 66.
Petitioner protests any adverse inference that might flow from this testimony and asserts that there is no evidence that Clayton requested assistance from Norman or his representatives who had filed powers of attorney with the Service. Reply Brief for Petitioners 3-4. Counsel for respondents at oral argument stated: "I want to correct any wrong implication if there is one, that they received no cooperation from Mr. Norman. . . . (N)obody had asked him prior to that time (his becoming a fugitive) for cooperation." Tr. of Oral Arg. 25.
5
Jeopardy assessments of the determined deficiencies in Mrs. Norman's taxes were also made on March 19. App. 97.
The notice which is required after jeopardy assessment by § 6861(b) of the Code enables the taxpayer to file a petition with the United States Tax Court for a redetermination of the deficiency. See Laing v. United States, 423 U.S. 161, 96 S.Ct. 473, 46 L.Ed.2d 416 (1976). A timely notice was sent to Norman, and a petition was filed on his behalf with the Tax Court. His case awaits trial there (Docket No. 6000-73).
6
The two automobiles seized in Los Angeles were a two-door tan Stutz, valued at $30,000, and a four-door burgundy Stutz, valued at $100,000. They were financed by loans from Murray First Thrift. Following the levy, Murray foreclosed its own liens and arranged with Norman's attorney for the sale of the automobiles. App. 33, 122. It appears that the Government did not participate in those transactions and received no portion of the proceeds of the sales.
7
The Internal Revenue Service Manual, P 5341.1, instructs that if an occupant of a private residence denies a revenue officer permission to enter, the officer should not attempt entry by force.
8
The Service later found this particular automobile at another location. App. 83. It had been moved by Norman's son after the revenue agents had left on March 21. Id., at 34.
9
Title to the cottage was in the name of Real Estate, Inc., a corporation the Service determined to be the alter ego of Mrs. Norman. Id., 97. That corporation is not a party to the present suit and the relief petitioner requests does not include the return of the cottage.
10
There is some evidence in the record that this took place on March 22 rather than March 23. Id., at 34, 59, 77.
11
The respondents in their brief state that while the case was pending on appeal to the Tenth Circuit the Service voluntarily destroyed all existing photocopies of the seized books and records. Brief for Respondents 16 n. 9, 76-77, and n. 43. Petitioner concedes that the seized documents have been returned and the photocopies destroyed. Tr. of Oral Arg. 14-15.
12
There was conflicting testimony as to whether stock was issued. 1 Tr. 52-53.
13
This date appears to be an error. See also n. 10, supra.
14
This portion of the judgment of the Court of Appeals affirming the trial court is not before us. Neither is any right of the intervenor at issue here. Tr. of Oral Arg. 13.
15
Section 6331 reads in part:
"(a) Authority of Secretary or delegate.
"If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. . . . If the Secretary or his delegate makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be made by the Secretary or his delegate and, upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the 10-day period provided in this section.
"(b) Seizure and sale of property.
"The term 'levy' as used in this title includes the power of distraint and seizure by any means. A levy shall extend only to property possessed and obligations existing at the time thereof. In any case in which the Secretary or his delegate may levy upon property or rights to property, he may seize and sell such property or rights to property (whether real or personal, tangible or intangible)."
16
Section 6321 reads:
"If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person."
17
This effectuated a denial of the son's petition for certiorari.
18
If additional support were needed for this result, it is found in the Court's decisions sustaining the right of the Government to collect taxes by summary administrative proceedings. Thus, in Bull v. United States, 295 U.S. 247, 260, 55 S.Ct. 695, 699, 79 L.Ed. 1421 (1935), it was stated that a tax assessment "is given the force of a judgment, and if the amount assessed is not paid when due, administrative officials may seize the debtor's property to satisfy the debt." See also Cheatham v. United States, 92 U.S. 85, 87-90, 23 L.Ed. 561 (1876); State Railroad Tax Cases, 92 U.S. 575, 612-615, 23 L.Ed. 663 (1876); Graham v. Du Pont, 262 U.S. 234, 255, 43 S.Ct. 567, 569, 67 L.Ed. 965 (1923). The rationale underlying these decisions, of course, is that the very existence of government depends upon the prompt collection of the revenues. In Phillips v. Commissioner, 283 U.S. 589, 596-597, 51 S.Ct. 608, 611, 75 L.Ed. 1289 (1931), the Court rejected a constitutional challenge to the statutory system under which taxes may be collected summarily without a pre-seizure judicial hearing. It was held that as long as there was an adequate opportunity for a post-seizure determination of the taxpayer's rights, the statute met the requirements of due process. See Commissioner v. Shapiro, 424 U.S. 614, 630-633, 96 S.Ct. 1062, 1072-1074, 47 L.Ed.2d 278 (1976); Fuentes v. Shevin, 407 U.S. 67, 91-92, 92 S.Ct. 1983, 1999-2000, 32 L.Ed.2d 556 (1972). These cases, of course, center upon the Due Process Clause rather than the Fourth Amendment, but the constitutional analysis is similar and yields a like result. It is to be noted that the Court in Phillips, 283 U.S., at 596, 51 S.Ct. at 611, cited Murray's Lessee with approval as a case which sustained proceedings "more summary in character" and "involving less directly the obligation of the taxpayer."
19
See T. Taylor, Two Studies in Constitutional Interpretation 41 (1969); N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 51-78 (1937); J. Landynski, Search and Seizure and the Supreme Court 30-42 (1966).
20
In Boyd, the Court stated:
"The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him." 116 U.S., at 623, 6 S.Ct. at 528.
The Court's concern in Boyd was with establishing the impermissibility of the subpoena of papers. It was not concerned with the warrant requirement for entry into private places. The Court, however, did say:
"The entry upon premises, made by a sheriff or other officer of the law, for the purpose of seizing goods and chattels by virtue of a judicial writ, such as an attachment, a sequestration, or an execution, is not within the prohibition of the Fourth or Fifth Amendment, or any other clause of the Constitution." Id., at 624, 6 S.Ct. at 529. (emphasis added).
The Court was not concerned with, and therefore did not explain, whether the "judicial writ" referred to above was necessary in order to meet the warrant requirements. The opinion does describe the "obnoxious writs of assistance" against which the Fourth Amendment was designed to protect. This description gives an indication of the types of tax-enforcement actions that the Amendment's protections were intended to reach:
"Even the act under which the obnoxious writs of assistance were issued did not go as far as this, but only authorized the examination of ships and vessels, and persons found therein, for the purpose of finding goods prohibited to be imported or exported, or on which the duties were not paid, and to enter into and search any suspected vaults, cellars, or warehouses for such goods." (Footnote omitted.) Id., at 623, 6 S.Ct. at 528.
21
There is no claim that any other exception to the warrant requirement, such as "hot pursuit," "plain view," or "pursuant to an arrest," is applicable here.
| 01
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429 U.S. 399
97 S.Ct. 657
50 L.Ed.2d 638
William J. GUSTE, Jr., Attorney General of Louisiana, et al.v.Calvin JACKSON and Delta Woman's Clinic, Inc.
No. 76-61.
Decided Jan. 17, 1977.
PER CURIAM.
1
A Louisiana statute1 forbids performance of an abortion on a minor without her parents' consent, or her husband's consent if she is married. The United States District Court for the Eastern District of Louisiana enjoined enforcement of the statute. Its decision discusses only these special requirements for abortions on minors, but the injunction appears to extend to the entire statute, and thus includes "informed consent" requirements applicable to all women. We vacate the injunction insofar as it bars enforcement of the "informed consent" requirements, and remand to the District Court so that it may consider the construction of those requirements, their validity in light of this Court's intervening decision in Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 65-67, 96 S.Ct. 2831, at 2839-2840, 49 L.Ed.2d 788 (1976), and their severability from the remainder of the statute.
2
So ordered.
1
Louisiana Rev.Stat.Ann. § 40:1299.33(D) (Supp.1976) reads as follows:
"No abortion shall be performed on any woman unless prior to the abortion she shall have been advised, orally and in writing, that she is not required to submit to the abortion and that she may refuse any abortion for any reason and without explanation and that she shall not be deprived of any governmental assistance or any other kind of benefits for refusing to submit to an abortion. This provision shall be of full force and effect notwithstanding the fact that the woman in question is a minor, in which event said minor's parents or if a minor emancipated by marriage, the minor's husband, shall also be fully advised of their right to refuse an abortion for the minor in the same manner as the minor is advised. Compliance with this provision shall be evidenced by the written consent of the woman that she submits to the abortion voluntarily and of her own free will, and by written consent of her parents, if she is an unmarried minor, and by consent of her husband if she is a minor emancipated by marriage, such written consent to set forth the written advice given and the written consent and acknowledgment that a full explanation of the abortion procedure to be performed has been given and is understood."
| 45
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429 U.S. 401
97 S.Ct. 679
50 L.Ed.2d 641
Thomas J. WALSH, Jr., dba Tom Walsh & Co., Petitioner,v.E. A. SCHLECHT et al., as Trustees, etc.
No. 75-906.
Argued Nov. 1, 1976.
Decided Jan. 18, 1977.
Syllabus
Section 302(a)(1) of the Labor Management Relations Act prohibits agreements of employers to pay money to any representative of their employees, but §§ 302(c)(5) and (6) exempt from this proscription agreements to pay money to trust funds jointly created and administered by trustees representing employer associations and a labor union for the purpose of providing medical or hospital care, pensions, or pooled vacations for employees of signatory employers, or to defray the costs of apprenticeship or other training programs. A collective-bargaining agreement between petitioner general contractor and a carpenters' union required signatory employers to pay contributions at an aggregate rate of 96 cents per hour worked by carpenter employees to certain trust funds (Health and Welfare, Pension, Vacation Savings, Apprenticeship and Training, and Construction Industry Advancement (CIAF) ) administered by respondent trustees. With respect to nonsignatory subcontractors, a subcontractor's clause of the agreement specified that petitioner should require the subcontractor to be bound by the agreement or that petitioner should maintain daily records of the subcontractor's employees' hours and to be liable for payment of the contributions to the trust funds with respect to these employees. Petitioner subcontracted certain carpentry work on a federally subsidized low-income apartment project in Oregon to a nonsignatory employer (whose employees were not entitled to benefits in the trust funds), but did not exercise either of the above options. Instead, the subcontractor paid directly to his employees, as fringe benefits, 96 cents per hour in addition to their wages at union scale, thus paying out the same aggregate of wages and fringe benefits paid by signatory employers in the form of wages to their employees and contributions to the trust funds. Upon completion of the project, respondents sued petitioner in Oregon state court to enforce the subcontractor's clause, and petitioner defended on the ground that the clause violated § 302(a)(1). The trial court sustained respondents' demurrer, and, while holding that it would be "inequitable" to require contributions to the Health and Welfare, Pension and Vacation Savings Funds because they would amount to a double payment with respect to the subcontractor's employees, ordered an accounting limited to contributions to the Apprenticeship and CIAF trusts that did "not accrue benefits directly to the workmen." The Oregon Supreme Court affirmed sustainment of the demurrer, but, construing the subcontractor's clause as giving all the funds equal standing, reversed the judgment insofar as it limited the accounting to the Apprenticeship and CIAF trusts. Held :
1. Federal- rather than state-law principles of contract construction apply in determining the meaning of the subcontractor's clause, since it is a provision of a collective-bargaining agreement and application of federal law is necessary to avoid the "possibility that individual contract terms might have different meanings under state and federal law," Local 174, Teamsters, etc. v. Lucas Flour Co., 369 U.S. 95, 103, 82 S.Ct. 571, 577, 7 L.Ed.2d 593. Pp. 407-408.
2. The subcontractor's clause, as construed by the Oregon Supreme Court to require petitioner to make contributions to the trust funds measured by the hours worked by his subcontractor's employees, the benefits being payable only to carpenters employed by petitioner or other signatory employers, does not violate § 302(a)(1) but is authorized by §§ 302(c)(5) and (6). Enforcement of the clause as so construed not only is consistent with the wording of §§ 302(c) (5) and (6) but also does no disservice to the congressional purpose in enacting § 302 to combat "corruption of collective bargaining through bribery of employee representatives by employers, . . . extortion by employee representatives, and . . . the possible abuse by union officers of the power which they might achieve if welfare funds were left to their sole control." Arroyo v. United States, 359 U.S. 419, 425-426, 79 S.Ct. 864, 868, 3 L.Ed.2d 915. Pp. 408-411.
3. The objective of the Davis-Bacon Act to protect contractors' employees from substandard earnings by fixing a floor under wages on Government projects, is not "frustrated" by the subcontractor's clause, since such objective is clearly not "frustrated" when contractual arrangements between employers and their employees result in higher compensation and benefits than the floor established by that Act. P. 411.
273 Or. 221, 540 P.2d 1011, affirmed.
Carl R. Neil, Portland, Ore., for petitioner.
Paul T. Bailey, Portland, Ore., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question presented by this case is whether the provision of a collective-bargaining agreement between petitioner, a general contractor, and the Oregon State Council of Carpenters, requiring that petitioner pay contributions to certain trust funds with respect to hours of carpentry work performed by employees of a nonsignatory subcontractor, violated § 302(a)(1) of the Labor Management Relations (Taft-Hartley) Act, 29 U.S.C. § 186(a)(1). That section generally prohibits agreements of employers to pay money to any representative of their employees. Sections 302(c)(5) and (6), however, exempt from this general proscription written agreements to pay money to trust funds jointly created and administered by trustees representing employer associations and the union for the purpose of providing medical or hospital care, pensions, pooled vacations for employees of signatory employers, or to defray the costs of apprenticeship or other training programs.1
2
Petitioner constructed a federally subsidized low-income apartment project in Salem, Ore. A collective-bargaining agreement between petitioner and the Oregon State Council of Carpenters required petitioner to pay contributions to five employer-union trust funds jointly created by the carpenters' union and multiemployer general contractors associations, and jointly administered by respondents, trustees designated in equal numbers by the employers and union. The trusts are, respectively, the Health and Welfare Trust Fund, the Pension Trust Fund, the Vacation Savings Trust Fund, the Apprenticeship and Training Trust Fund, and the Construction Industry Advancement Fund (CIAF). Only signatory employers may contribute to the funds, and no carpenter employee of a nonsignatory employer is entitled to benefits in the Health and Welfare, Pension, and Vacation Savings Funds, the three funds that provide benefits for carpenter employees.2 Contributions were payable at the aggregate rate of 96 cents per hour of carpentry work done at the project.
3
Petitioner subcontracted the framing work on the project to Lloyd Jackson, a framing specialist, who was a nonsignatory employer and whose employees were therefore not eligible for trust fund benefits. In such cases petitioner had the option under a "subcontractor's clause," Art. IV of the collective-bargaining agreement, of requiring "such subcontractor to be bound to all the provisions of this Agreement," or of maintaining "daily records of the subcontractors employees jobsite hours and be liable for payment of these employees (sic ) . . . (trust fund) contributions in accordance with this Agreement."3 Petitioner did neither. He did not require that the subcontractor "be bound" to the agreement and the subcontractor made no contributions to the funds. Instead the subcontractor paid directly to his carpenter employees, as fringe benefits, 96 cents per hour in addition to their wages at union scale,4 thus paying out the same aggregate of wages and fringe benefits paid by signatory employers in the form of wages to their employees and contributions to the trust funds.
4
Nor did petitioner maintain daily records of and pay contributions to the trust funds with respect to the hours of carpentry work performed on the project by the subcontractor's carpenter employees. Therefore, after completion of the project, respondent trustees brought this action in the Circuit Court of Multnomah County, Ore., to enforce the provision of Art. IV. Grounded upon petitioner's agreement to "be liable for payment of these (the subcontractor's) employees (sic ) . . . (trust fund) contributions . . .," the complaint sought, inter alia, an accounting of the hours of carpentry work performed by the subcontractor's employees on the project, and a judgment for the amount of such work at 96 cents per hour. Petitioner's principal defense was that the subcontractor's clause violated § 302(a)(1). The Circuit Court sustained respondents' demurrer to that defense. The Circuit Court held, however, that it would be "inequitable" to require contributions to the Health and Welfare, Pension, and Vacation Savings Funds because they would in effect amount "to double fringe benefits" with respect to the subcontractor's employees. It therefore ordered an accounting limited to contributions to the Apprenticeship and CIAF trusts that did "not accrue benefits directly to the workmen." The Supreme Court of Oregon affirmed the judgment insofar as it sustained the demurrer to petitioner's defense based on § 302(a)(1) but, construing the subcontractor's clause as giving all the "funds . . . equal standing under the terms of the contract . . .," reversed the judgment insofar as it limited the accounting to the Apprenticeship and CIAF trusts. 273 Or. 221, 225-226, 540 P.2d 1011, 1013-1014 (1975). We granted certiorari, 424 U.S. 942, 96 S.Ct. 1408, 47 L.Ed.2d 347 (1976). We affirm.
5
* (1, 2) The parties agree that the determinative question for decision is that of the proper construction of the subcontractor's clause: whether that clause binds petitioner to make contributions to the trust funds "on behalf of" or "for the benefit of" the subcontractor's employees, so that they may participate in the benefits provided carpenters by the funds. Thus interpreted, the clause would violate § 302(a)(1) because the subcontractor is not a signatory to the collective-bargaining agreement and his employees are therefore ineligible for trust fund benefits based on carpentry work performed for him. On the other hand, if the clause merely obligates petitioner to pay contributions to the funds measured by the hours of carpentry work performed at the project by the subcontractor's employees, the benefits being payable only to carpenters employed by petitioner and other signatory employers, then the clause is authorized by the exceptions to the general prohibition of § 302(a) enacted in §§ 302(c)(5) and (6).
6
(3-5) Before turning to the question of the meaning of the clause we must address a threshold question whether federal or state law principles of contract construction, if they differ, are to be applied. Plainly federal law principles apply. Although the Oregon courts were not foreclosed from entertaining this suit merely because petitioner's defense invoked § 302(a)(1) of the Taft-Hartley Act, Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962), we have proceeded "upon the hypothesis that state courts would apply federal law in exercising (such) jurisdiction" and that "incompatible doctrines of local law must give way to principles of federal labor law." Teamsters v. Lucas Flour Co., 369 U.S. 95, 102, 82 S.Ct. 571, 576, 7 L.Ed.2d 593 (1962) (citations omitted). Application of federal law is necessary to avoid the "possibility that individual contract terms might have different meanings under state and federal law . . .," id., at 103, 82 S.Ct., at 577.
7
The Oregon courts did not specify in this case whether federal or state principles of contract construction guided their concurring conclusions that the subcontractor's clause was not to be read as violating § 302(a)(1). We shall therefore assume that federal principles were applied. In any event, if in fact state rules of contract interpretation were employed, federal rules would require agreement with the Oregon courts' construction. Since a general rule of construction presumes the legality and enforceability of contracts, 6A A. Corbin, Contracts §§ 1499, 1533 (1962), ambiguously worded contracts should not be interpreted to render them illegal and unenforceable where the wording lends itself to a logically acceptable construction that renders them legal and enforceable. The subcontractor's clause, although inartfully worded, lends itself to a construction that ties signatory employer contributions to the trust funds as measured both by hours worked by his own employees and hours worked by his nonsignatory subcontractor's employees, and, so construed, Art. IV does not violate § 302(a)(1).
8
Petitioner argues that the Oregon Supreme Court's opinion reads the clause as requiring petitioner to make payments "on behalf of" Jackson's employees in order that they may participate in the benefits of the trusts. This reading, he contends, is implicit in the following passage from the State Supreme Court's opinion:
9
"In this case the requirement of such a written contract was satisfied in that defendant had a written contract with the union which required that he make contributions to the trust funds for his own employees and also specifically provided that in the event he engaged a subcontractor to do any work covered by the agreement he would be liable for payments into the various trust funds for the employees of such a subcontractor." 273 Or., at 229, 540 P.2d, at 1015 (emphasis added).
10
Read in isolation, this somewhat ambiguous passage might appear to support petitioner's argument. In the context of the entire opinion, however, particularly its reliance upon lower federal court decisions upholding the legality of payments measured in whole or in part by wages paid to employees ineligible to receive benefits, it becomes clear that the Oregon Supreme Court read the subcontractor's clause as an agreement by petitioner to make contributions to the funds measured by the hours of carpentry work performed by the subcontractor's employees, not "on behalf of" or "for the benefit of" the nonsignatory contractor's ineligible employees, but solely for the benefit of the employees of petitioner and other signatory employers. This conclusion follows, we think, from the Oregon Supreme Court's treatment of Moglia v. Geoghegan, 403 F.2d 110 (CA2 1968), and Kreindler v. Clarise Sportswear Co., 184 F.Supp. 182 (SDNY1960). In rejecting petitioner's argument that § 302(a) (1) prohibits an employer from making any contributions except for the benefit of his own and other signatory employers' employees, the court characterized language in Moglia, cited by petitioner in support of this construction, as "not necessary to . . . decision in that case, in which there was no written agreement, and it is not binding upon this court in this case." 273 Or., at 229 n.4, 540 P.2d, at 1015 n.4.5 Rather, the Oregon Supreme Court relied on Kreindler, also involving payments to a trust fund for employees of a nonunion contractor, where the contention was rejected that an employer's contributions measured by the hours worked of another employer's employees violated § 302(a)(1). The court quoted extensively from the Kreindler opinion's reasoning in concluding that payments might be legal even though measured by hours worked by employees of another employer. The court stated flatly: "We agree with (the) statement" from Kreindler that " '(t)he fact that the employees of Clarise's contractors cannot share in the payments based on their payrolls which Clarise has agreed to make does not give Clarise the right to avoid its agreement as illegal.' " 273 Or., at 230, 540 P.2d, at 1015.6 Accord, Budget Dress Corp. v. Joint Board of Waistmakers' Union, 198 F.Supp. 4 (SDNY1961), aff'd, 299 F.2d 936 (CA2 1962); Minkoff v. Scranton Frocks, Inc., 181 F.Supp. 542 (SDNY), aff'd, 279 F.2d 115 (CA2 1960); Greenstein v. National Skirt & Sportswear Assn., 178 F.Supp. 681 (SDNY1959).
11
(6, 7) We agree that enforcement of the subcontractor's clause, as so construed by the Oregon Supreme Court to require petitioner to make contributions measured by the hours worked by his subcontractor's employees, not only is consistent with the wording of §§ 302(c)(5) and (6) but also does no disservice to the congressional purpose in enacting § 3027 to combat "corruption of collective bargaining through bribery of employee representatives by employers, . . . extortion by employee representatives, and . . . the possible abuse by union officers of the power which they might achieve if welfare funds were left to their sole control." Arroyo v. United States, 359 U.S. 419, 425-426, 79 S.Ct. 864, 868, 3 L.Ed.2d 915 (1959).
II
12
(8) Petitioner also advances an argument, apparently not made in the Oregon courts, that the subcontractor's clause "frustrates" the objectives of the Davis-Bacon Act, 40 U.S.C. § 276a, by increasing his labor costs over the minimum required by that Act. However, the Davis-Bacon Act "was not enacted to benefit contractors, but rather to protect their employees from substandard earnings by fixing a floor under wages on Government projects." United States v. Binghamton Constr. Co., 347 U.S. 171, 176-177, 74 S.Ct. 438, 441, 98 L.Ed. 594 (1954). That objective is clearly not "frustrated" when contractual arrangements between employers and their employees result in higher compensation and benefits than the floor established by the Act.
13
Affirmed.
14
Mr. Justice WHITE, dissenting.
15
Because petitioner, a general contractor, employed a nonunion subcontractor, who did not subscribe to the provisions of the collective-bargaining agreement, he was required to maintain records of the jobsite hours worked by the subcontractor's employees and to be "liable for payment of these employees (sic) wages, travel, Health-Welfare and Dental, Pension, Vacation, Apprenticeship and CIAF contributions in accordance with this Agreement." Record 82-83. The Oregon Supreme Court described this language as making petitioner liable "for payments into the trust funds for the employees of the nonunion subcontractor." This means to me that the payments were on behalf of the subcontractor's employees. It also appears a straightforward reading of the contractual language that the "subcontractors . . . employees . . . contributions" be made by petitioner. Had the subcontractor been eligible to make these contributions, they surely would have been made for the benefit of his employees. The sensible inference from the contractual language is that the contractor, the petitioner, intended the same result. Common sense tells us that petitioner had no intention of making contributions with respect to employees who could never benefit.
16
As construed in this way, the provision is illegal because the employees of the noncontributing contractor may not be a beneficiary of the trust funds, even though the contributions are made with respect to them. But this would not be the first time that parties have drafted unenforceable contractual provisions, either by design, accident, or mistake.
17
I do not understand why the Court feels such compulsion to save the contract by construing it to mean that the payments at issue are not for the benefit of the contractor's employees at all and are not made on their behalf. The result of this construction is that in addition to the full contract price paid to the subcontractor, petitioner must pay into the trust funds 96 cents for each jobsite hour worked by the subcontractor's employees, these funds to be held for the employees of the contributing employers but excluding the subcontractor's employees. This is simply a penalty for employing a nonsignatory subcontractor, a penalty the Court creates in construing the contract as it does. With all due respect, I dissent and would reverse the judgment below.
1
Section 302 of the Labor Management Relations Act, 1947, 61 Stat. 157, as amended, 29 U.S.C. § 186 provides in pertinent part:
"(a) It shall be unlawful for any employer or association of employers . . . to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value
"(1) to any representative of any of his employees who are employed in an industry affecting commerce;
"(c) The provisions of this section shall not be applicable . . . (5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families, and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer . . .; (6) with respect to money or other thing of value paid by any employer to a trust fund established by such representative for the purpose of pooled vacation, holiday, severance or similar benefits, or defraying costs of apprenticeship or other training programs: Provided, That the requirements of clause (B) of the proviso to clause (5) of this subsection shall apply to such trust funds . . . ."
2
Petitioner conceded that the trustees will not accept contributions from nonsignatory employers. App. 53. The five trust funds involved in this case expressly limit participation in benefits to employees of signatory employers and petitioner makes no claim that the subcontractors' employees received benefits from the funds.
3
Article IV of the Carpenters Master Labor Agreement between general contractors associations and the Oregon State and Southwest Washington District Councils of the United Brotherhood of Carpenters and Joiners of America, with which petitioner by memorandum agreement agreed to comply, provides as follows:
"If an employer, bound by this Agreement, contracts or subcontracts, any work covered by this Agreement to be done at the job site of the construction, alteration or repair of a building, structure or other work to any person or proprietor who is not signatory to this Agreement, the employer shall require such subcontractor to be bound to all the provisions of this Agreement, or such employer shall maintain daily records of the subcontractors employees job site hours and be liable for payment of these employees wages, travel, Health-Welfare and Dental, Pension, Vacation, Apprenticeship and CIAF contributions in accordance with this Agreement." (Emphasis added.)
4
Agreements with the Department of Housing and Urban Development required employers participating in the Salem project to pay their employees according to the prevailing wage scale, as defined in the Davis-Bacon Act, 40 U.S.C. § 276a. Under the Act, fringe benefits may be paid either to the workmen directly or to union-employer trusts for the benefit of the workmen. The Act applies to all construction contracts to which the United States is a party.
5
Moglia had been employed for 28 years by a single employer whose payments into the trust fund had been illegal because he was not a party to a written agreement as required by § 302(c)(5)(B). 403 F.2d, at 114. The Court of Appeals for the Second Circuit concluded that Moglia was not eligible to receive benefits because he had never been an employee of an employer lawfully contributing to the fund.
6
A provision of the controlling collective-bargaining agreement required Clarise, as a member of a multiple-employer bargaining association, to make payments to the union's health and welfare and retirement funds based both upon Clarise's own payrolls and upon the payrolls of the contractors who manufactured Clarise's product. The employees of Clarise's contractors were not eligible to receive benefits from the funds.
7
The agreement establishing the CIAF trust provides for exclusive employer administration and that fund is therefore outside the coverage of § 302.
Our decision that the subcontractor's clause does not violate § 302 makes it unnecessary to address petitioner's argument that § 302(c)(6) should be read to incorporate the "exclusive benefit" requirement of § 302(c)(5).
| 67
|
429 U.S. 413
97 S.Ct. 658
50 L.Ed.2d 652
UNITED STATES, Petitioner,v.Thomas W. DONOVAN et al.
No. 75-212.
Argued Oct. 13, 1976.
Decided Jan. 18, 1977.
Syllabus
Title 18 U.S.C. § 2518(1)(b)(iv), which is part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, requires the Government to include in its wiretap applications "the identity of the person, if known, committing the offense and whose communications are to be intercepted." Section 2518(8) (d) requires the judge to whom a wiretap application is made to cause to be served on the persons named in the wiretap order or application an inventory, which must give notice of entry of the order or application, state the disposition of the application, and indicate whether communications were intercepted, and further provides that the judge may order similar notice to other parties to intercepted communications if he concludes that such action is in the interest of justice. Evidence derived from wiretaps must be suppressed under § 2518(10)(a)(i) if "the communication was unlawfully intercepted." On December 26, 1972, the Government applied for an extension of an order authorizing a wiretap interception of gambling-related conversations of certain named individuals other than respondents Donovan, Robbins, and Buzzacco and "others as yet unknown" to or from four listed telephones, and the Government did not identify these respondents in the application even though it had previously learned they were discussing illegal gambling activities with the named subjects. The District Court authorized a 15-day interception. On February 21, 1973, the Government submitted to the court a proposed order giving notice of the interception to 37 persons, the court signed the order, and an inventory notice was served on the listed persons, including respondents Donovan, Robbins, and Buzzacco. Subsequently, after the Government submitted the names of two additional persons whose identities allegedly had been omitted inadvertently from the initial list, the court entered an amended order giving notice to those individuals, but as a result of "administrative oversight" respondents Merlo and Lauer were not included in either list of names and were never served with an inventory notice. Respondents, along with others, were indicted for federal gambling offenses. On respondents' motion, the District Court suppressed as to respondents Donovan, Robbins, and Buzzacco all evidence derived from the December 26 intercept order on the ground that failure to name them in the application and order of that date violated § 2518(1)(b)(iv), inter alia, and suppressed at to respondents Merlo and Lauer all evidence derived from both intercept orders on the ground that these two respondents had not been served with an inventory notice as required by § 2518(8)(d). The Court of Appeals affirmed. Held :
1. Section 2518(1)(b)(iv) is not satisfied when the wiretap application identifies only the "principal target" (usually the individual whose phone is monitored) of the interception, but the Government is required to name all individuals who it has probable cause to believe are engaged in the criminal activity under investigation and whose conversations it expects will be intercepted over the target telephone. Neither the language and structure of Title III nor its legislative history supports the interpretation that Congress intended to remove from the identification requirement those suspects whose intercepted communications originated on a telephone other than that listed in the wiretap application. Pp. 423-428.
2. Under § 2518(8)(d), the Government has a statutory responsibility to inform the issuing judge of the identities of persons whose conversations were overheard in the course of the interception, thus enabling him to decide whether they should be served with notice of the interception. Here the Government did not comply adequately with § 2518(8)(d), since the names of respondents Merlo and Lauer were not included on the purportedly complete list of identifiable persons submitted to the issuing judge. Pp. 428-432.
3. Although the Government was required under § 2518(1)(b)(iv) to identify respondents Donovan, Robbins, and Buzzacco in the December 26 application, failure to do so under these circumstances did not warrant suppression under § 2518(10)(a)(i), since the identification in an intercept application of all those likely to be overheard in incriminating conversations does not play a "substantive role" with respect to judicial authorization of intercept orders and hence does not impose a limitation on the use of intercept procedures. Pp. 435-437.
(a) Here the statutorily imposed preconditions to judicial authorization (a determination that normal investigative techniques have failed or are unlikely to succeed, and probable cause to believe that (i) an individual is engaged in criminal activity, (ii) particular communications concerning the offense will be obtained through interception, and (iii) the target facilities are being used in connection with the specified criminal activity) were satisfied, and the issuing judge was simply unaware that additional persons might be overheard engaging in incriminating conversations, the intercept being lawful because the application provided sufficient information to enable the judge to determine that the statutory preconditions were satisfied. Pp. 435-436.
(b) There is nothing in the legislative history to suggest that Congress intended § 2518(1)(b)(iv)'s broad identification requirement to play "a central, or even functional, role in guarding against unwarranted use of wiretapping or electronic surveillance," United States v. Chavez, 416 U.S. 562, 578, 94 S.Ct. 1849, 1857, 40 L.Ed.2d 380. P. 437.
4. Nor was suppression justified under § 2518(10)(a)(i) with respect to respondents Merlo and Lauer simply because the Government inadvertently omitted their names from the comprehensive list of all identifiable persons whose conversations had been overheard. Pp. 438-439.
(a) There is nothing in the structure or legislative history of the Act to suggest that incriminating conversations are "unlawfully intercepted" whenever parties to those conversations do not receive discretionary inventory notice under § 2518(8)(d) as a result of the Government's failure to inform the court of their identities. P. 438.
(b) Here, at the time inventory notice was served on the other identifiable persons, the intercept had been completed and the conversations had been "seized" under a valid intercept order, and the fact that discretionary notice reached 39 rather than 41 identifiable persons does not in itself mean that the conversations were unlawfully intercepted. Pp. 438-439.
6 Cir., 513 F.2d 337, reversed and remanded.
Andrew L. Frey, Washington, D. C., for petitioner.
Bernard A. Berkman, Cleveland, Ohio, and Carmen A. Policy, Youngstown, Ohio, for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents issues concerning the construction of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. Specifically, we must decide whether 18 U.S.C. § 2518(1)(b)(iv), which requires the Government to include in its wiretap applications "the identity of the person, if known, committing the offense and whose communications are to be intercepted," is satisfied when the Government identifies only the "principal targets" of the intercept. Second, we must decide whether the Government has a statutory responsibility to inform the issuing judge of the identities of persons whose conversations were overheard in the course of the interception, thus enabling him to decide whether they should be served with notice of the interception pursuant to 18 U.S.C. § 2518(8)(d). And finally, we must determine whether failure to comply fully with these statutory provisions requires suppression of evidence under 18 U.S.C. § 2518(10)(a).
2
* On November 28, 1972, a special agent of the Federal Bureau of Investigation applied to the United States District Court for the Northern District of Ohio for an order authorizing a wiretap interception in accordance with Title III.1 The application requested authorization to intercept gambling-related communications over two telephones at one address in North Olmstead, Ohio, and two other telephones at a home in Canton, Ohio. The accompanying affidavit recited that the telephones were being used by Albert Kotoch, Joseph Spaganlo, and George Florea to conduct an illegal gambling business, and that in conducting that business they would place calls to and receive calls from various persons, three of whom were also named in the wiretap application.2 The affiant also stated that the Government's informants would refuse to testify against the persons named in the application, that telephone records alone would be insufficient to support a gambling conviction, and that normal investigative techniques were unlikely to be fruitful. Pursuant to the Government's request, the District Court authorized for a period of 15 days the interception of gambling-related wire communications of Kotoch, Spaganlo, Florea, three named individuals other than the respondents, and "others, as yet unknown," to and from the four listed telephones.3
3
During the course of the wiretap, the Government learned that respondents Donovan, Robbins, and Buzzacco were discussing illegal gambling activities with the named subjects. On December 26, 1972, the Government applied for an extension of the initial intercept order.4 This time it sought authorization to intercept gambling-related conversations of Kotoch, Spaganlo, Florea, two other named individuals, and "others as yet unknown," but it did not identify respondents Donovan, Buzzacco and Robbins in this second application.5 The District Court again authorized interception of gambling-related conversations for a maximum of 15 days.
4
On February 21, 1973, the Government submitted to the District Court a proposed order giving notice of the interceptions to 37 persons, a group which the Government apparently thought included all individuals who could be identified as having discussed gambling over the monitored telephones.6 The District Court signed the proposed order, and an inventory notice was served on the listed persons, including respondents Donovan, Buzzacco, and Robbins. On September 11, 1973, after the Government submitted the names of two additional persons whose identities allegedly had been omitted inadvertently from the initial list, the District Court entered an amended order giving notice to those individuals. As a result of what the Government labels "administrative oversight," respondents Merlo and Lauer were not included in either list of names and were never served with inventory notice.7
5
On November 1, 1973, an indictment was returned in the United States District Court for the Northern District of Ohio charging Kotoch, Spaganlo, the five respondents, and 10 other individuals with conspiracy to conduct and conducting a gambling business in violation of 18 U.S.C. §§ 371 and 1955. The five respondents filed motions to suppress evidence derived from the wire interception. After an evidentiary hearing on the motions, the District Court suppressed as to respondents Donovan, Robbins, and Buzzacco all evidence derived from the December 26 intercept order on the ground that failure to identify them by name in the application and order of that date violated 18 U.S.C. §§ 2518(1)(b)(iv) and 2518(4)(a). With respect to Merlo and Lauer, who were not known to the Government until after the December 26 application, the District Court suppressed all evidence derived from both intercept orders on the ground that they had not been served with inventory notice.
6
The Court of Appeals for the Sixth Circuit affirmed. 513 F.2d 337 (1975).8 On the identification issue, the court held that the wiretap application must identify every person whose conversations relating to the subject criminal activity the Government has probable cause to believe it will intercept. Agreeing with the District Court that at the time of the December 26 application the Government had probable cause to believe that it would overhear Donovan, Robbins, and Buzzaco "committing the offense," the Court of Appeals affirmed the suppression of evidence derived from the December 26 order. On the notice question, it held that the Government has an implied statutory duty to inform the issuing judge of the identities of the parties whose conversations were overheard so that he can determine whether discretionary inventory notice should be required.9 Because the Government had failed to perform this duty with respect to Merlo and Lauer, the Court of Appeals affirmed the District Court's order suppressing evidence derived from both intercept orders. The court found it unnecessary to determine whether the failure to identify respondents Donovan, Robbins, and Buzzaco in the December 26 application and to name respondents Merlo and Lauer in the proposed inventory notice orders was inadvertent or purposeful, since the mere fact of omission was sufficient to require suppression under 18 U.S.C. § 2518(10)(a).10
7
We granted certiorari to resolve these issues, which concern the construction of a major federal statute, 424 U.S. 907, 96 S.Ct. 1100, 47 L.Ed.2d 310, and now reverse.
II
8
The United States contends that § 2518(1)(b)(iv) requires that a wiretap application identify only the principal target of the interception, and that § 2518(8)(d) does not require the Government to provide the issuing judge with a list of all identifiable persons who were overheard in the course of an authorized interception. We think neither contention is sound.
A.
9
We turn first to the identification requirements of § 2518(1)(b)(iv). That provision requires a wiretap application to specify "the identity of the person, if known, committing the offense and whose communications are to be intercepted." In construing that language, this Court already has ruled that the Government is not required to identify an individual in the application unless it has probable cause to believe (i) that the individual is engaged in the criminal activity under investigation and (ii) that the individual's conversations will be intercepted over the target telephone. United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). The question at issue here is whether the Government is required to name all such individuals.11
10
The United States argues that the most reasonable interpretation of the plain language of the statute is that the application must identify only the principal target of the investigation, who "will almost always be the individual whose phone is to be monitored."12 Brief for United States 18. Under this interpretation, if the Government has reason to believe that an individual will use the target telephone to place or receive calls, and the Government has probable cause to believe that the individual is engaged in the criminal activity under investigation, the individual qualifies as a principal target and must be named in the wiretap application. On the other hand, an individual who uses a different telephone to place calls to or receive calls from the target telephone is not a principal target even if the Government has probable cause to believe that the individual is engaged in the criminal activity under investigation. In other words, whether one is a principal target of the investigation depends on whether one operates the target telephone to place or receive calls.13
11
Whatever the merits of such a statutory scheme, we find little support for it in the language and structure of Title III or in the legislative history. The statutory language itself refers only to "the person, if known, committing the offense and whose communications are to be intercepted." That description is as applicable to a suspect placing calls to the target telephone as it is to a suspect placing calls from that telephone. It is true, as the United States suggests, that when read in the context of the other subdivisions of § 2518(1) (b), an argument can be made that Congress focused in subdivision (iv) on the primary user of the target telephone. But is is also clear from other sections of the statute that Congress expected that wiretap applications would name more than one individual. For example, Title III requires that inventory notice be served upon "the persons named in the order or the application." 18 U.S.C. § 2518(8)(d) (emphasis added). And § 2518(1)(e) requires that an intercept application disclose all previous intercept applications "involving any of the same persons . . . specified in the application" (emphasis added). It may well be that Congress anticipated that a given application would cover more than one telephone or that several suspects would use one telephone, and that an application for those reasons alone would require identification of more than one individual. But nothing on the face of the statute suggests that Congress intended to remove from the identification requirement those suspects whose intercepted communications originated on a telephone other than that listed in the wiretap application.14
12
Nor can we find support in the legislative history for the "principal target" interpretation. Title III originated as a combination of S. 675, the Federal Wire Interception Act, which was introduced by Senator McClellan several months prior to this Court's decision in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and S. 2050, the Electronic Surveillance Control Act of 1967, introduced by Senator Hruska a few days after the Berger decision. S.Rep.No.1097, 90th Cong., 2d Sess., 66 (1968), U.S.Code Cong. & Admin.News 1968, p. 2112. Both bills required that wiretap applications include a full and complete statement of the facts and circumstances relied upon by the applicant and specification of the nature and location of the communication facilities involved. Although neither bill contained an express identification requirement such as that at issue here, both bills required the application to include a "full and complete statement of the facts concerning all previous applications . . . involving any person named in the application as committing, having committed, or being about to commit an offense." Hearings Before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary on Controlling Crime Through More Effective Law Enforcement, 90th Cong., 1st Sess., 77, § 8(a)(3), and p. 1006, § 2518(4)(a) (1967) (emphasis added). Thus, even at this early stage, it was recognized that an application could identify several individuals, and there is no indication that the identification would be limited to principal targets.
13
S. 917 combined the major provisions of S. 675 and S. 2050 and eventually was enacted. While it was pending before the Senate Judiciary Committee, this Court decided Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). S. 917 was then redrafted to conform to Katz as well as Berger, and the identification provision was added at that time. The Senate Report states that the requirements set forth in the various subdivisions of § 2518(1)(b), including the identification requirement at issue here, were intended to "reflect . . . the constitutional command of particularization." S.Rep.No.1097, supra, at 101, U.S.Code Cong. & Admin.News 1968, p. 2190, citing Berger v. New York, supra, 388 U.S., at 58-60, 87 S.Ct., at 1883, and Katz v. United States, supra, 389 U.S., at 354-356, 88 S.Ct., at 512. The United States now contends that although it may be that Congress read Berger and Katz to require, as a constitutional matter, that the subject of the surveillance be named if known, Congress would hardly have read those cases as requiring the naming of all parties likely to be overheard.15 Brief for United States 25-26. But to the extent that Congress thought it was meeting the constitutional commands of particularization established in Berger and Katz, Congress may have read those cases as mandating a broad identification requirement. The statute that we confronted in Berger required identification of "the person or persons" whose communications were to be overheard. 388 U.S., at 59, 87 S.Ct. at 1883. And we expressly noted that that provision "(did) no more than identify the person whose constitutionally protected area is to be invaded . . .." Ibid. Given the statute at issue in Berger and our comment upon it, Congress may have concluded that the Constitution required the naming, in a wiretap application, of all suspects rather than just the primary user.16
14
In any event, for our present purposes it is unnecessary to speculate as to exactly how Congress interpreted Berger and Katz with respect to the identification issue. It is sufficient to note that in response to those decisions Congress included an identification requirement which on its face draws no distinction based on the telephone one uses, and the United States points to no evidence in the legislative history that supports such a distinction. Indeed, the legislative materials apparently contain no use of the term "principal target" or any discussion of a different treatment based on the telephone from which a suspect speaks.17 We therefore conclude that a wiretap application must name an individual if the Government has probable cause to believe that the individual is engaged in the criminal activity under investigation and expects to intercept the individual's conversations over the target telephone.
B
15
The other statutory provision at issue in this case is 18 U.S.C. § 2518(8) (d), which provides that the judge shall cause to be served on the persons named in the order or application an inventory, which must give notice of the entry of the order or application, state the disposition of the application, and indicate whether communications were intercepted.18 Although the statute mandates inventory notice only for persons named in the application or the order, the statute also provides that the judge may order similar notice to other parties to intercepted communications if he concludes that such action is in the interest of justice.19 Observing that this notice provision does not expressly require law enforcement authorities routinely to supply the judge with specific information upon which to exercise his discretion, the United States contends that it would be inappropriate to read such a requirement into the statute since the judge has the option of asking the law enforcement authorities for whatever information he requires.
16
Our reading of the legislative history of the discretionary notice provision in light of the purposes of Title III leads us to reject the Government's interpretation. As reported from the Judiciary Committee, § 2518(8)(d) contained only a provision mandating notice to the persons named in the application or the order; the discretionary notice provision was added by amendment on the floor of the Senate. In introducing that amendment, Senator Hart explained its purpose:
17
"The amendment would give the judge who issued the order discretion to require notice to be served on other parties to intercepted communications, even though such parties are not specifically named in the court order. The Berger and Katz decisions established that notice of surveillance is a constitutional requirement of any surveillance statute. It may be that the required notice must be served on all parties to intercepted communications. Since legitimate interests of privacy may make such notice to all parties undesirable, the amendment leaves the final determination to the judge." 114 Cong.Rec. 14485-14486 (1968).20
18
In deciding whether legitimate privacy interests justify withholding inventory notice from parties to intercepted conversations, a judge is likely to require information and assistance beyond that contained in the application papers and the recordings of intercepted conversations made available by law enforcement authorities. No purpose is served by holding that those authorities have no routine duty to supply the judge with relevant information. The Court of Appeals for the Ninth Circuit recently confronted this problem of dual responsibility, and we adopt the balanced construction that court placed on § 2518(8)(d):
19
"To discharge this obligation the judicial officer must have, at a minimum, knowledge of the particular categories into which fall all the individuals whose conversations have been intercepted. Thus, while precise identification of each party to an intercepted communication is not required, a description of the general class, or classes, which they comprise is essential to enable the judge to determine whether additional information is necessary for a proper evaluation of the interests of the various parties. Furthermore, although the judicial officer has the duty to cause the filing of the inventory (notice), it is abundantly clear that the prosecution has greater access to and familiarity with the intercepted communications. Therefore we feel justified in imposing upon the latter the duty to classify all those whose conversations have been intercepted, and to transmit this information to the judge. Should the judge desire more information regarding these classes in order to exercise his (statutory) § 2518(8)(d) discretion, . . . the government is (also) required to furnish such information as is available to it." United States v. Chun, 9 Cir., 503 F.2d 533, 540 (1974). (Footnote omitted.)
20
We agree with the Ninth Circuit that this allocation of responsibility best serves the purposes of Title III.21
21
Currently, the policy of the Justice Department is to provide the issuing judge with the name of every person who has been overheard as to whom there is any reasonable possibility of indictment. Brief for United States 39. Because it fails to assure that the necessary range of information will be before the issuing judge, this policy does not meet the test set out in Chun. Moreover, where as here, the Government chooses to supply the issuing judge with a list of all identifiable persons rather than a description of the classes into which those persons fall, the list must be complete. Applying these principles, we find that the Government did not comply adequately with § 2518(8)(d), since the names of respondents Merlo and Lauer were not included on the purportedly complete list of identifiable persons submitted to the issuing judge.
III
22
We turn now to the question whether the District Court properly suppressed evidence derived from the wiretaps at issue solely because of the failure of the law enforcement authorities to comply fully with the provisions of §§ 2518(1)(b)(iv) and 2518(8)(d). Section 2515 expressly prohibits the use at trial, and at certain other proceedings, of the contents of any intercepted wire communication or any evidence derived therefrom "if the disclosure of that information would be in violation of this chapter." The circumstances that trigger suppression under § 2515 are in turn enumerated in § 2518(10)(a):
23
"(i) the communication was unlawfully intercepted;
24
"(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
25
"(iii) the interception was not made in conformity with the order of authorization or approval."
26
There is no basis on the facts of this case to suggest that the authorization orders are facially insufficient, or that the interception was not conducted in conformity with the orders. Thus, only § 2518(10)(a)(i) is relevant: Were the communications "unlawfully intercepted" given the violations of §§ 2518(1)(b) (iv) and 2518(8)(d)?22 Resolution of that question must begin with United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), and United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). Those cases hold that "(not) every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications 'unlawful.' " Id., at 416 U.S., at 574-575, 94 S.Ct., at 1856. To the contrary, suppression is required only for 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." United States v. Giordano, supra, 416 U.S., at 527, 94 S.Ct., at 1832.
27
Giordano concerned the provision in Title III requiring that an application for an intercept order be approved by the Attorney General or an Assistant Attorney General specially designated by the Attorney General. Concluding that Congress intended to condition the use of wiretap procedures on the judgment of senior officials in the Department of Justice, the Court required suppression for failure to comply with the approval provision. Chavez concerned the statutory requirement that the application for an intercept order specify the identity of the official authorizing the application. The problem in Chavez was one of misidentification; although the application had in fact been authorized by the Attorney General, the application erroneously identified an Assistant Attorney General as the official authorizing the application. The Court concluded that mere misidentification of the official authorizing the application did not make the application unlawful within the meaning of § 2518(10)(a)(i) since that identification requirement did not play a "substantive role" in the regulatory system. 416 U.S., at 578, 94 S.Ct. at 1857.
28
In the instant case, the Court of Appeals concluded that both the identification requirement of § 2518(1)(b)(iv) and the notice requirement of § 2518(8)(d) played a "central role" in the statutory framework, and for that reason affirmed the District Court's order suppressing relevant evidence. Although both statutory requirements are undoubtedly important, we do not think that the failure to comply fully with those provisions renders unlawful an intercept order that in all other respects satisfies the statutory requirements.
A.
29
As to § 2518(1)(b)(iv), the issue is whether the identification in an intercept application of all those likely to be overheard in incriminating conversations plays a "substantive role" with respect to judicial authorization of intercept orders and consequently imposes a limitation on the use of intercept procedures. The statute provides that the issuing judge may approve an intercept application if he determines that normal investigative techniques have failed or are unlikely to succeed and there is probable cause to believe that: (i) an individual is engaged in criminal activity; (ii) particular communications concerning the offense will be obtained through interception; and (iii) the target facilities are being used in connection with the specified criminal activity. §§ 2518(3)(a-d). That determination is based on the "full and complete statement" of relevant facts supplied by law enforcement authorities. If, after evaluating the statutorily enumerated factors in light of the information contained in the application, the judge concludes that the wiretap order should issue, the failure to identify additional persons who are likely to be overheard engaging in incriminating conversations could hardly invalidate an otherwise lawful judicial authorization. The intercept order may issue only if the issuing judge determines that the statutory factors are present, and the failure to name additional targets in no way detracts from the sufficiency of those factors.
30
This case is unlike Giordano, where failure to satisfy the statutory requirement of prior approval by specified Justice Department officials bypassed a congressionally imposed limitation on the use of the intercept procedure. The Court there noted that it was reasonable to believe that requiring prior approval from senior officials in the Justice Department "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." 416 U.S., at 528, 94 S.Ct. at 1832. Here, however, the statutorily imposed preconditions to judicial authorization were satisfied, and the issuing judge was simply unaware that additional persons might be overheard engaging in incriminating conversations. In no meaningful sense can it be said that the presence of that information as to additional targets would have precluded judicial authorization of the intercept.23 Rather, this case resembles Chavez, where we held that a wiretap was not unlawful simply because the issuing judge was incorrectly informed as to which designated official had authorized the application. The Chavez intercept was lawful because the Justice Department had performed its task of prior approval, and the instant intercept is lawful because the application provided sufficient information to enable the issuing judge to determine that the statutory preconditions were satisfied.24 Finally, we note that nothing in the legislative history suggests that Congress intended this broad identification requirement to play "a central, or even functional, role in guarding against unwarranted use of wiretapping or electronic surveillance." United States v. Chavez, 416 U.S., at 578, 94 S.Ct. at 1857. Neither S. 675 nor S. 2050, the predecessor bills of S. 917, contained an identification provision. See supra, at 426. The only explanation given in the Senate Report for the inclusion of the broad identification provision was that it was intended to reflect what Congress perceived to be the constitutional command of particularization. This explanation was offered with respect to all the information required by § 2518(1)(b) to be set out in an intercept application. No additional guidance can be gleaned from the floor debates, since they contain no substantive discussion of the identification provision.25
B
31
We reach the same conclusion with respect to the Government's duty to inform the judge of all identifiable persons whose conversations were intercepted. As noted earlier, the version of Title III that emerged from the Senate Judiciary Committee provided only for mandatory notice to the "persons named in the order or the application." The Senate Report detailed the purpose of that provision:
32
"(T)he intent of the provision is that the principle of postuse notice will be retained. This provision alone should insure the community that the techniques are reasonably employed. Through its operation all authorized interceptions must eventually become known at least to the subject. He can then seek appropriate civil redress for example, under section 2520 . . . if he feels that his privacy has been unlawfully invaded." S.Rep.No.1097, 90th Cong., 2d Sess., 105 (1968), U.S.Code Cong. & Admin.News, p. 2194.
33
The floor discussion concerning the amendment adding the provision for discretionary notice merely indicates an intent to provide notice to such additional persons as may be constitutionally required.
34
Nothing in the structure of the Act or this legislative history suggests that incriminating conversations are "unlawfully intercepted" whenever parties to those conversations do not receive discretionary inventory notice as a result of the Government's failure to inform the District Court of their identities. At the time inventory notice was served on the other identifiable persons, the intercept had been completed and the conversations had been "seized" under a valid intercept order. The fact that discretionary notice reached 39 rather than 41 identifiable persons does not in itself mean that the conversations were unlawfully intercepted.26
35
The legislative history indicates that postintercept notice was designed instead to assure the community that the wiretap technique is reasonably employed. But even recognizing that Congress placed considerable emphasis on that aspect of the overall statutory scheme, we do not think that postintercept notice was intended to serve as an independent restraint on resort to the wiretap procedure.
IV
36
Although the Government was required to identify respondents Donovan, Robbins, and Buzzacco in the December 26 application for an extension of the initial intercept, failure to do so in the circumstances here presented did not warrant suppression under § 2518(10)(a)(i). Nor was suppression justified with respect to respondents Merlo and Lauer simply because the Government inadvertently omitted their names from the comprehensive list of all identifiable persons whose conversations had been overheard. We hold that this is the correct result under the provisions of Title III, but we reemphasize the suggestion we made in United States v. Chavez, 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." 416 U.S., at 580, 94 S.Ct. at 1858.
37
The order of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
38
It is so ordered.
39
Mr. Chief Justice BURGER, concurring in part and concurring in the judgment.
40
I concur in the Court's judgment and in all except Part II-A of the Court's opinion. I cannot agree, however, with the Court's construction of the identification provisions of § 2518(1)(b)(iv), since I believe the application for surveillance in this case complied with statutory requirements. However, the precise reach of the identification requirement is irrelevant because respondents are foreclosed from seeking suppression in any event.
41
Respondents Donovan, Robbins, and Buzzacco contend that, since their names were not contained in the wiretap application, suppression is required under the express exclusionary provision of Title III, § 2518(10)(a). Their contention flies in the teeth of legislative history directly to the contrary. In the evolution of Title III, Congress considered and rejected a proposed amendment which would have expressly conferred the exclusionary benefit that respondents now seek. Specifically, Senators Long and Hart proposed the addition of a fourth subdivision to the suppression provision contained in § 2518(10)(a). 114 Cong.Rec. 14718 (1968). Had that proposal been adopted, it would have allowed suppression of intercepted conversations at the behest of any aggrieved person on the ground that he or she was not named in the application or extension.1 In its comment on the proposal, the Department of Justice said:
42
"The amendment would permit intercepted communications to be used in evidence only against the persons named in the court order, not against other persons." Ibid. (Emphasis supplied.)
43
Consistent with the Justice Department's recommendation, the Senate rejected the result which respondents now seek.
44
Even if the legislative history were silent with respect to suppression, however, I would nonetheless take issue with the Court's analysis of the identification requirement. In my view, Congress required no more than that a wiretap application identify by name the primary user of the monitored facility.
45
Congress drafted this statute with exacting precision. As its principal sponsor, Senator McClellan, put it:
46
"(A) bill as controversial as this . . . requires close attention to the dotting of every 'i' and the crossing of every 't' . . . ." Id., at 14751.
47
Under these circumstances, the exact words of the statute provide the surest guide to determining Congress' intent, and we would do well to confine ourselves to that area. The statutory provision before us requires the wiretap application to specify the "identity of the person, if known, committing the offense and whose communications are to be intercepted." 18 U.S.C. § 2518(1) (b)(iv). (Emphasis supplied.) As the Court correctly indicates, the identification requirement was carefully added in the wake of Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). That case involved the constitutionality of a New York statute requiring the naming of "the person or persons whose communications . . . are to be overheard." That very different statute plainly put Congress on notice that an identification provision could call, as did New York's, for the naming of multiple parties. Indeed, while requiring only the identification of "the person" whose communications are to be intercepted, Congress anticipated the obvious fact that interceptions effected pursuant to a single application and order could potentially affect a large number of persons. Standing to object to intercepted communications is conferred upon "(a)ny aggrieved person . . . ." § 2518(10)(a). In addition, a civil damages remedy is conferred upon "(a)ny person" whose communications are unlawfully intercepted or used in violation of the statute. Thus in fashioning highly specific requirements with respect to wiretap applications, Congress failed to employ language found in other parts of the same statute and so carefully written into the state statute at issue in the Berger case.
48
The Court emphasizes, however, that the statute expressly recognizes that more than one person may be named in a wiretap application. Ante, at 425. That is indeed true. See §§ 2518(1)(e), (8)(d). But I would think this is all the more reason for focusing upon the precise language in the provision establishing explicit requirements for an application. Since Congress expressly contemplated that applications might contain more than one name, its failure in § 2518(1)(b)(iv) to require the naming of "any person" or "the persons" whose communications are to be intercepted must mean that an open-ended identification requirement was never intended. In other words, Congress reasonably foresaw that, for a variety of reasons, actual wiretap applications might contain the names of more than one person. But Congress did not translate its recognition of what an application might reasonably contain into a command as to what it must contain.
49
Assuming that plain words of a statute might have to bow, in some circumstances, to compelling legislative history to the contrary, nothing of that kind is found here. As the Court observes, the earlier bills introduced in the Senate contained no identification provision at all. After Berger and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), were decided, the requirement was added in what was plainly an abundance of caution. For this Court in Berger flatly discounted any value in New York's broad identification requirement.
50
"It is true that the statute requires the naming of 'the person or persons whose communications, conversations or discussions are to be overheard or recorded . . . .' But this does no more than identify the person whose constitutionally protected area is to be invaded rather than 'particularly describing' the communications, conversations, or discussions to be seized." 388 U.S., at 59, 87 S.Ct. at 1883. (Emphasis supplied.)
51
As shown by its rejection of the proposed suppression provision which obviously would have had the practical effect of increasing the number of persons identified in wiretap applications Congress correctly perceived little value in multiplying indefinitely the number of names to be set forth in wiretap applications and orders. This is particularly true since no Fourth Amendment values are served by a sweeping identification requirement. The Court has made clear:
52
" 'The Fourth Amendment requires a warrant to describe only "the place to be searched, and the persons or things to be seized," not the persons from whom things will be seized.' " United States v. Kahn, 415 U.S. 143, 155 n. 15, 94 S.Ct. 977, 984 39 L.Ed.2d 225 (1974). (Emphasis supplied.)
53
Hence, the statute, as it presently stands, comports entirely with Fourth Amendment requirements, and thus achieves the express legislative purpose of " 'reflect(ing) the constitutional commands of particularization.' " Ante, at 427. Under those circumstances, it ill serves this Court to speculate that our coequal branch of Government, despite the clear teaching of the Constitution, incorrectly surmised "that the Constitution (may have) required the naming . . . of all suspects rather than just the primary user." Ibid. In any event, if our own decisions have created confusion in the Congress, which is not surprising, nothing is gained by perpetuating that confusion in the face of Congress' clear intent to comply with this Court's interpretation of the Fourth Amendment.
54
In short, the Court has redrafted a statute passed by Congress to make it identical to a statutory provision found valueless by this Court a few years ago in the Berger case. This undertaking, unfortunately, is not entirely without consequence, notwithstanding the Court's refusal to approve suppression of the evidence here. Among other things, federal officers are potentially subject to a civil damages action, with compensatory damages of not less than $1,000, plus punitive damages, plus reasonable attorneys' fees.2 Nor is this federal remedy exclusive. State-provided damages remedies are not pre-empted. S.Rep.No. 1097, 90 Cong., 2d Sess., 107 (1968); 2 U.S.Code Cong. & Admin.News 1968, p. 2196. Damages awards aside, the Court's opinion albeit in dictum hints that suppression may indeed be in the offing if an intentional "violation" is shown. Finally, district judges will now be put to the task, at least in some cases, of determining whether probable cause exists with respect to each person listed in the application. § 2518(3)(d). Judges may well wonder why such burdens are imposed upon them for a gain which the Court found illusory in the Berger case.
55
I would therefore interpret this statute to mean just what it says and no more. Wisely or not, Congress decided, consistent with Fourth Amendment strictures, to require only the identification of "the person" whose conversations are to be intercepted. Since Congress demonstrably knew how to use other language when it so chose, I would take Congress at its word and not try to "improve" on its draftsmanship.
56
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting in part.
57
The Court today holds that an application for a warrant to authorize a wiretap under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, must name all individuals who the Government has probable cause to believe are committing the offense being investigated and will be overheard. See 18 U.S.C. § 2518(1)(b)(iv). It also holds that the Government must provide sufficient information to the issuing judge to allow him to exercise the discretion provided by 18 U.S.C. § 2518(8)(d). I fully agree with both of these holdings. The Court concludes, however, that if the Government violates these statutory commands, it is nevertheless free to use the intercepted communications as evidence in a criminal proceeding. I cannot agree.
58
I continue to adhere to the position, expressed for four Members of the Court by Mr. Justice Douglas in his dissent in United States v. Chavez, 416 U.S. 562, 584-585, 94 S.Ct. 1849, 1861, 40 L.Ed.2d 380 (1974), that Title III does not authorize "the courts to pick and choose among various statutory provisions, suppressing evidence only when they determine that a provision is 'substantive,' 'central,' or 'directly and substantially' related to the congressional scheme." The Court has rejected that argument, however, see United States v. Chavez, supra; United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), and nothing is to be gained by renewing it here. But even under the standard set forth in Giordano and Chavez and reaffirmed by the Court today, ante, at 433-434, the evidence at issue here should be suppressed.
59
* Title III requires that an application for a warrant to authorize wiretapping disclose "the identity of the person, if known, committing the offense and whose communications are to be intercepted." 18 U.S.C. § 2518(1)(b)(iv). The Court properly rejects the Government's contention that this provision requires it to name only the "principal target" of an investigation. In doing so, the Court relies both on the plain language and legislative history of the section, which do not support the Government's position, and on the statutory context. Ante, at 424-428. Part of that context is the obvious assumption of other portions of Title III that wiretap applications will name more than one target. See 18 U.S.C. §§ 2518(1)(e), (8)(d). Another part is
60
"the fact that identification of an individual in an application for an intercept order triggers other statutory provisions. First, § 2518(1)(e) requires an intercept application to disclose all previous applications 'involving any of the same persons . . . specified in the application.' . . . Second, § 2518(8)(d) mandates that an inventory notice be served upon 'the persons named in the order or the application.' " Ante, at 425 n. 14 (emphasis added).
61
Yet in determining whether the identification requirement "directly and substantially implement(s) the congressional intention to limit the use of intercept procedures," United States v. Giordano, supra, at 527, 94 S.Ct., at 1832, or plays a "substantive role" in the "regulatory system" established by Congress, United States v. Chavez, supra, 416 U.S., at 578, 94 S.Ct., at 1857, the Court ignores the requirement's function as a statutory "trigger." In its analysis, the Court focuses solely on whether a list of additional names would affect a judge who must decide whether to issue a warrant. The Court reasons that once the judge has concluded that the specific requirements of § 2518(3)1 have been met, the presence of additional names in the warrant application could not change his decision. Ante, at 435-436. Failure to provide those names is, therefore, insignificant.
62
The Court's reasoning is doubly flawed. First, a judge is not required to issue a warrant if the prerequisites of § 2518(3) are satisfied; he may do so. Once he determines that the § 2518(3) requirements have been met, he still must decide whether the invasion of privacy by the proposed wiretap is justified under the circumstances.2 Second, what is at issue here is more than a simple list of names. Section 2518(1)(e) requires that the Government disclose to the court the history of all prior applications to intercept the communications of anyone named in a warrant application. A history of recent applications would at the least cause a judge to consider whether the application before him was an attempt to circumvent the restrictive rulings of another judge or to continue an unjustified invasion of privacy.3 The decision whether to issue the warrant would certainly be affected by such consideration.4
63
It is true, as the Court notes, ante, at 436 n. 23,5 that there is no allegation in this case that had the District Court been informed that the Government expected to overhear respondents Donovan, Buzzacco, and Robbins discussing illegal gambling activities it would not have issued a warrant. But that fact is irrelevant to an analysis of the role of the naming requirement in the regulatory system established by Congress. In Giordano, the Court rejected the argument that the Attorney General's failure to authorize the application for a warrant could be disregarded because the Attorney General had later ratified the application, thus demonstrating that he would have approved it originally. 416 U.S., at 523-524, n. 12, 94 S.Ct. at 1830. The important consideration was whether the requirement of high-level authorization was designed to play an important role, not whether it would have mattered in the particular case. The same analysis should be used here.
64
Moreover, even where there is no prior interception or application to disclose, as is apparently the case here, the naming requirement plays a vital role in the system designed by Congress. For unless that requirement is complied with from the first interception, no judge will know that a later interception is not the first. In addition, the naming requirement triggers the mandatory notification provision of § 2518(8)(d), another important component of the congressional design.6
65
Thus, I conclude that the naming requirement recognized by the majority does play a "substantive role" in the system designed by Congress to limit the use of electronic surveillance. Failure to comply with that requirement, therefore, should lead to suppression on the ground that "the communication was unlawfully intercepted." 18 U.S.C. § 2518(10)(a)(i).
II
66
The Court's discussion of the consequences of the Government's failure to comply with the notice provision of § 2518(8)(d) parallels its discussion of the naming requirement, and is similarly flawed. The Court does recognize that the notice provision was designed to assure the community that the wiretap technique is reasonably employed and that "Congress placed considerable emphasis on that aspect of the overall statutory scheme." Ante, at 439. But because notice occurs after the intercept is completed, and because notice is not itself "an independent restraint on resort to the wiretap procedure," the Court concludes that failure to notify does not render an interception "unlawful" under § 2518(10)(a)(i). Ante, at 439.
67
Again, the Court takes too narrow a view of the provision at issue, ignoring its place in the system Congress has created to restrain wiretapping. That system involves not only direct restraints on applying for a warrant, but also restraints which reduce wiretaps by providing sanctions for misuse of surveillance techniques. Those sanctions are both criminal, 18 U.S.C. § 2511(1), and civil, 18 U.S.C. § 2520. Congress designed the notice provisions of § 2518(8)(d) to provide the information necessary to make the civil sanctions of § 2520 meaningful. The congressional analysis of § 2520 states:
68
"Injunctive relief, with its attendant discovery proceedings, is not intended to be available . . . . It is expected that civil suits, if any, will instead grow out of the filing of inventories under section 2518(8)(d)." S.Rep.No.1097, 90th Cong., 2d Sess., 107 (1968), U.S.Code Cong. & Admin.News, p. 2196.
69
See also id., at 105.
70
The Court's conclusion that the notice provision is not central dismantles this carefully designed congressional structure.
III
71
The Court's opinion implies that if the violations of Title III considered here had been intentional, the result would be different. Ante, at 436 n. 23, 439 n. 26. This must be so, for surely this Court would not tolerate the Government's intentional disregard of duties imposed on it by Congress. I also assume that if the Government fails to establish procedures which offer reasonable assurance that it will strictly adhere to the statutory requirements, see ante, at 439-440, resulting failures to comply will be recognized as intentional. There is, therefore, reason to hope that the Court's admonition that the Government should obey the law will have some effect in the future.
72
But that hope is a poor substitute for certainty that the Government will make every effort to fulfill its responsibilities under Title III. We can obtain that certainty only by according full recognition to the role of the naming and notice requirements in the statutory scheme created by Congress. I respectfully dissent from the Court's failure to do so.
73
Mr. Justice STEVENS, concurring in part and dissenting in part.
74
For the reasons stated in Parts I and II of Mr. Justice MARSHALL's opinion, I respectfully dissent from Parts III and IV of the Court's opinion. I join Parts I and II of the Court's opinion.
1
The wiretap application procedure is set forth at 18 U.S.C. § 2518(1), which provides:
"(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state
the applicant's authority to make such application. Each application shall include the following information:
"(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;
"(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
"(c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
"(d) a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
"(e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; and
"(f) where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results."
The issuing judge is free to require the applicant to furnish additional information. 18 U.S.C. § 2518(2).
2
The affidavit set forth extensive information indicating that the named individuals were conducting a gambling operation. This information was derived from physical surveillance by agents of the FBI, an examination of telephone company toll records, and the personal observations of six informants, whose past reliability also was detailed in the affidavit.
3
The District Court's order was issued pursuant to 18 U.S.C. §§ 2518(3), (4), which provide in pertinent part:
"(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
"(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.
"(4) Each order authorizing or approving the interception of any wire or oral communication shall specify
"(a) the identity of the person, if known, whose communications are to be intercepted;
"(b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
"(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
"(d) the identify of the agency authorized to intercept the communications, and of the person authorizing the application; and
"(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."
4
In addition to the December 26 application requesting an extension of the initial intercept order, the Government also filed on that date a separate application seeking authorization to monitor a third telephone discovered at the same North Olmstead address. Both applications were accompanied by another affidavit setting forth the results of the initial monitoring, the manner in which the third telephone was discovered, the facts indicating that the newly discovered telephone was being used to conduct a gambling business, and reasons why continued interception was necessary. A copy of the affidavit filed on November 28 was also attached to the December 26 applications. For the sake of clarity, the two applications filed on December 26 will be treated as a single application.
5
The United States conceded in the Court of Appeals that respondents Donovan and Robbins were "known" within the meaning of the statute at the time of the December 26 application, but challenged as clearly erroneous the District Court's finding that respondent Buzzacco was "known" at that time. The Court of Appeals upheld the District Court's finding, and the United States has not sought review of that disposition. Thus, for our purposes, all three respondents were "known" on December 26.
6
An inventory notice must be served within a designated period of time upon "the persons named in the order or the application." 18 U.S.C. § 2518(8) (d). The inventory must give notice of the entry of the intercept order or application, state the disposition of the application, and indicate whether communications were or were not intercepted. Ibid. Upon the filing of a motion, the judge has discretion to make available the intercepted communications, the applications, and the orders. Ibid.
Title III also authorizes the District Court to cause an inventory notice to be served on "other parties to intercepted communications" if the judge determines that such notice is in the interest of justice. Ibid. Those other parties may also be given access to the intercepted communications, the applications, and the orders. Ibid.
7
Although respondents Merlo and Lauer were not served with inventory notice pursuant to § 2518(8)(d), the intercept orders, applications, and related papers were made available to all the defendants, including Merlo and Lauer, on November 26, 1973. Thus, the introduction into evidence at trial of the contents of the intercepted conversations and evidence derived therefrom would not be prohibited by 18 U.S.C. § 2518(9).
8
The Government filed its appeal from the District Court's order suppressing evidence under 18 U.S.C. § 3731, and there has been no trial on the charges with respect to the respondents.
9
See n. 6, supra.
10
Title 18 U.S.C. § 2518(10)(a) provides in pertinent part:
"(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
"(i) the communication was unlawfully intercepted;
"(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
"(iii) the interception was not made in conformity with the order of authorization or approval."
11
Every Court of Appeals that has considered the issue has concluded that an individual whose conversations probably will be intercepted by a wiretap must be identified in the wiretap application if the law enforcement authorities have probable cause to believe the individual is committing the offense for which the wiretap is sought. United States v. Chiarizio, 525 F.2d 289, 292 (C.A.2 1975); United States v. Bernstein, 509 F.2d 996 (C.A.4 1975), cert. pending, No. 74-1486; United States v. Doolittle, 507 F.2d 1368 (CA5), aff'd en banc, 518 F.2d 500 (1975), cert. pending, Nos. 75-500, 75-509, 75-513; United States v. Civella, 533 F.2d 1395 (C.A.8 1976), cert. pending, Nos. 75-1813, 76-169; United States v. Russo, 527 F.2d 1051, 1056 (C.A.10 1975), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 831 (1976). See also United States v. Moore, 168 U.S.App.D.C. 227, 235-236, 513 F.2d 485, 493-494 (1975) (interpreting D.C.Code § 23-547(a)(2)(D), which is almost identical to the provision at issue here).
A number of these courts have concluded, and respondents Donovan, Robbins, and Buzzacco argue, that our decision in United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974), resolved this identification issue. See United States v. Chiarizio, supra; United States v. Moore, supra. Although there is language in Kahn suggesting that wiretap applications must identify all such individuals, the identification question presented here was not before us in Kahn. The question in that case was whether a wiretap application had to identify a known user of the target telephone whose complicity in the criminal activity under investigation was not known at the time of the application. Kahn is a relevant, though not controlling, precedent.
12
The United States does not suggest that regardless of the factual circumstances a wiretap application must identify only a single individual. To the contrary, it concedes that if two or more persons are using the target telephone "equally" to commit the offense, and thus are "equally" targets of the investigation, "all must be named." Brief for United States 18 n. 13.
13
Counsel for the United States explained this position succinctly at oral argument: "The critical distinction . . . is (one) between the users of the telephone that is being monitored on the one hand, and all other persons throughout the world who may converse from unmonitored phones on the other hand." Tr. of Oral Arg. 13.
14
Indeed, the contrary conclusion is suggested by the fact that identification of an individual in an application for an intercept order triggers other statutory provisions. First, § 2518(1)(e) requires an intercept application to disclose all previous applications "involving any of the same persons . . . specified in the application." To the extent that Congress thought it necessary to provide the issuing judge with such information, there is no indication of congressional intent to require provision of such information only if a suspect operated from one end of a telephone line. Second, § 2518(8)(d) mandates that an inventory notice be served upon "the persons named in the order or the application." As with § 2518(1)(e), the congressional purpose would not be served by limiting that notice on the basis of the telephone from which one speaks.
15
At the time of the enactment of Title III, Congress did not have before it the view we expressed on this issue in United States v. Kahn, 415 U.S., at 155 n. 15, 94 S.Ct. at 984. The Fourth Amendment requires specification of "the place to be searched, and the persons or things to be seized." In the wiretap context, those requirements are satisfied by identification of the telephone line to be tapped and the particular conversations to be seized. It is not a constitutional requirement that all those likely to be overheard engaging in incriminating conversations be named. Specification of this sort "identif(ies) the person whose constitutionally protected area is to be invaded rather than 'particularly describing' the communications, conversations, or discussions to be seized." Berger v. New York, 388 U.S., at 59, 87 S.Ct., at 1883.
16
That Congress may have so understood the constitutional requirement is also suggested by the portion of the Senate Report dealing with that provision of S. 917 that required the intercept order to "specify the identity, of the individual if known, whose communications are to be intercepted." The Senate Report merely cites West v. Cabell, 153 U.S. 78, 14 S.Ct. 752, 38 L.Ed. 643 (1894), which concerns the need for proper identification of the subject of an arrest warrant. S.Rep.No.1097, 90th Cong., 2d Sess., 102 (1968). To the extent that Congress may have considered West to apply to wiretap orders, we have no reason to believe that Congress considered its applicability to extend only to those suspects using the target telephone.
17
At least one Senator read the identification requirement in S. 917 to parallel the identification requirement contained in the statute at issue in Berger v. New York: "Specificity is required as to the person or persons whose communications will be intercepted." 114 Cong.Rec. 14763 (1968) (remarks of Sen. Percy).
18
The inventory notice must be served within a reasonable time but not later than 90 days after the date the application for an intercept order was filed. On an ex parte showing of good cause, service of the inventory may be postponed.
19
In addition to these provisions for mandatory and discretionary inventory notice, the Government is required to supply the issuing judge with recordings of the intercepted conversations, which are to be sealed according to his directions. 18 U.S.C. § 2518(8)(a). These notice and return provisions satisfy constitutional requirements. See Katz v. United States, 389 U.S. 347, 355-356, 88 S.Ct. 507, 513, 19 L.Ed.2d 576 and n. 16 (1967); Berger v. New York, supra, 388 U.S., at 60, 87 S.Ct., at 1884.
20
It is worth noting that shortly before Senator Hart proposed this amendment to S. 917, Senator Long had read to the Senate portions of a report prepared by the Association of the Bar of the City of New York on federal wiretap legislation. That report commented that parties to intercepted conversations other than those named in the application or order probably should be served with inventory notice, but it also recognized that under some circumstances the provision of such notice could be harmful and gave the following example:
"A, a businessman, talks with his customers, and the latter are served with papers showing that A is being bugged . . . . (T)he damage to confidence in A and to A's reputation in general may damage A unjustly. In this case it would seem that the customers should not be served with the inventory." 114 Cong.Rec. 14476 (1968).
21
At oral argument, counsel for the United States recognized the merit of the approach specified in United States v. Chun:
"Perhaps the approach of the Court of Appeals for the Ninth Circuit, which suggested that rather than submitting specific names we should submit categories of persons who had been overheard, is a better policy, would be more helpful to the district court in exercising its discretion, and we would have no objection to following any reasonable policy that the district courts determine would be useful to them in this area." Tr. of Oral Arg. 6-7.
22
The availability of the suppression remedy for these statutory,
as opposed to constitutional, violations, see nn. 15 and 19, supra, turns on the provisions of Title III rather than the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights. United States v. Giordano, 416 U.S. 505, 524, 94 S.Ct. 1820, 1831, 40 L.Ed.2d 341 (1974).
The concurring opinion of THE CHIEF JUSTICE contends that respondents Donovan, Robbins, and Buzzacco lack standing even to seek suppression. Post, at 440-441. This contention rests on the ground that Congress rejected an amendment proposed by Senators Long and Hart that would have added a fourth ground justifying suppression namely, that the person against whom the Government sought to introduce the evidence was not named in the court order. Since these three respondents would have been entitled to suppression under the rejected amendment, the concurring opinion concludes they cannot seek suppression here.
This view fails to recognize that § 2518(10)(a) establishing the suppression remedy provides alternative grounds on which one can seek suppression of evidence derived from a wiretap. Thus, the mere fact that Congress chose not to add a fourth alternative could not mean that it intended to prevent persons who would have been covered by that alternative from seeking suppression on one of the other grounds. As the Justice Department commented, in the same statement cited in the concurring opinion: "The (Long and Hart) amendment is designed to limit the scope of electronic surveillance, but it accomplishes this purpose in an artificial manner. So long as a court order is validly obtained, evidence obtained under the order should be admissible against any person not merely against the person named in the order." 114 Cong.Rec. 14718 (1968) (emphasis added). Here, respondents Donovan, Robbins, and Buzzacco challenge the validity of the court order, and nothing in either Congress' rejection of the proposed amendment or the Justice Department's comment thereon suggests that § 2518(10)(a)(i) is unavailable to persons who might have had a remedy under a provision not enacted by Congress.
23
There is no suggestion in this case that the Government agents knowingly failed to identify respondents Donovan, Robbins, and Buzzacco for the purpose of keeping relevant information from the District Court that might have prompted the court to conclude that probable cause was lacking. If such a showing had been made, we would have a different case. Nor is there any suggestion that as a result of the failure to name these three respondents they were denied the mandatory inventory notice supplied to persons named in the application. 18 U.S.C. § 2518(8)(d). Respondents Donovan, Robbins, and Buzzacco were among the 37 persons served with the initial inventory.
24
No one suggests that the failure to identify in a wiretap application individuals who are "unknown" within the meaning of the statute, see United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974), requires suppression of intercepted conversations to which those individuals were parties. Though recognizing that the failure to identify such an "unknown" individual does not make unlawful an otherwise valid intercept order respondents Donovan, Robbins, and Buzzacco suggest that the opposite is true with respect to the failure to identify in a wiretap application individuals who are "known" within the meaning of the statute. Counsel for these respondents suggested at oral argument that this difference in result is justified by analogy to warrantless searches or arrests. Tr. of Oral Arg. 40. Although law enforcement officials can often take action without a warrant when they have been unable to foresee the circumstances that eventually confronted them, they still must obtain a search or arrest warrant when their prior knowledge is sufficient to establish probable cause, and it is suggested that the same principle applies here. The major flaw in that reasoning is that this case does not concern warrantless action. Here, the omission on the part of law enforcement authorities was not a failure to seek prior judicial authorization, but a failure to identify every individual who could be expected to be overhead engaging in incriminating conversations. That the complete absence of prior judicial authorization would make an intercept unlawful has no bearing on the lawfulness of an intercept order that fails to identify every target.
25
Even if we assume that Congress thought that a broad identification requirement was constitutionally mandated, it does not follow that Congress imposed statutory suppression under §§ 2515 and 2518(10)(a)(i) as a sanction for noncompliance. In limiting use of the intercept procedure to "the most precise and discriminate circumstances," S.Rep.No.1097, 90th Cong., 2d Sess., 102 (1968), U.S.Code Cong. & Admin.News, p. 2191, Congress required law enforcement authorities to convince a district court that probable cause existed to believe that a specific person was committing a specific offense using a specific telephone. This requirement was satisfied here when the application set forth sufficient information to indicate that the primary targets were conducting a gambling business over four particular telephones. Nothing in the legislative history indicates that Congress intended to declare an otherwise constitutional intercept order "unlawful" under § 2518(10)(a)(i) resulting in suppression under § 2515 for failure to name additional targets.
26
Counsel for respondents Merlo and Lauer conceded at oral argument that the failure to name those respondents in the proposed inventory order was not intentional, Tr. of Oral Arg. 32, and we are therefore not called upon to decide whether suppression would be an available remedy if the Government knowingly sought to prevent the District Court from serving inventory notice on particular parties. Nor does this case present an opportunity to comment upon the suggestion, recognized by the United States, Brief 49 n. 40, that suppression might be required if the agents knew before the interception that no inventory would be served.
Moreover, respondents Merlo and Lauer were not prejudiced by their failure to receive postintercept notice under either of the District Court's inventory orders. As noted earlier, the Government made available to all defendants the intercept orders, applications, and related papers. See n. 7, supra. And in response to pretrial discovery motions, the Government produced transcripts of the intercepted conversations.
1
The proposed addition provided:
"(iv) That he was not the subject of such application, authorization, or extension thereof."
It is true that the proposal did not speak directly to instances, such as here, where persons arguably should have been named in the application and order, but were not. But respondents, as unnamed persons, would plainly have had a suppression remedy if the amendment had passed.
2
18 U.S.C. § 2520. Since a court order will necessarily reflect the officers' "violation," it is not entirely certain that reliance upon a court order will provide a sufficient defense to a civil damages action.
1
Title 18 U.S.C. § 2518(3) provides, in pertinent part:
"Upon such application the judge may enter an ex parte order . . . if the judge determines on the basis of the facts submitted by the applicant that
"(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."
2
The information which the applicant is required to provide to the district court by §§ 2518(1)(d)-(f) would be superfluous if the decision whether to issue a warrant depended only on the findings specified in § 2518(3).
3
Cf. United States v. Bellosi, 163 U.S.App.D.C. 273, 501 F.2d 833 (1974).
4
Thus, this case is unlike United States v. Chavez. There, the Court concluded that the misidentification of the authorizing official as an Assistant Attorney General when the Attorney General had actually authorized the warrant application could not have affected the judge's decision to issue the warrant. 416 U.S., at 572, 94 S.Ct. at 1854.
5
The Court actually states only that there is no suggestion that the failure to name respondents kept from the judge information "that might have prompted the court to conclude that probable cause was lacking." As I have shown, that formulation understates the District Court's role.
6
See Part II, infra.
| 01
|
429 U.S. 452
97 S.Ct. 699
50 L.Ed.2d 683
UNITED STATES et al., Appellants,v.COUNTY OF FRESNO et al.
No. 75-1262.
Argued Nov. 8 and 9, 1976.
Decided Jan. 25, 1977.*
Syllabus
Pursuant to California statutes authorizing counties to impose an annual use or property tax on possessory interests in improvements on tax-exempt land, appellee counties imposed a tax on the possessory interests of appellant United States Forest Service employees in housing located in national forests within the counties and owned and supplied to appellants by the Forest Service as part of their compensation. Held: The tax is not barred by the Supremacy Clause as a state tax on the Federal Government or federal property. Pp. 457-468.
(a) A State may, in effect, raise revenues on the basis of property owned by the United States as long as that property is being used by a private citizen and as long as it is the possession or use by the private citizen that is being taxed. City of Detroit v. Murray Corp., 355 U.S. 489, 78 S.Ct. 458, 2 L.Ed.2d 441; United States v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, 2 L.Ed.2d 424; United States v. Township of Muskegon, 355 U.S. 484, 78 S.Ct. 483, 2 L.Ed.2d 436. P. 462.
(b) The economic burden on a federal function of a state tax imposed on those who deal with the Federal Government does not render the tax unconstitutional as long as the tax is imposed equally on the other similarly situated constituents of the State. Pp. 462-464.
(c) The "legal incidence" of the tax in question falls neither on the Federal Government nor on federal property but is imposed solely on private citizens who work for the Federal Government and threatens to interfere with federal laws relating to the Forest Service's functions only insofar as it may impose an economic burden on the Forest Service to reimburse its employees for the taxes owed or, failing reimbursement, to remove an advantage otherwise enjoyed by the Government in the employment market. Pp. 464.
(d) The tax does not discriminate against Forest Service or other federal employees, and the fact that it is imposed on real property renters only if the owner is exempt from taxation does not make it discriminatory. United States v. City of Detroit, supra. Since the state property tax imposed on owners of nonexempt property is passed on to their lessees, appellants are no worse off than those who work for private employers and rent houses in the private sector. P. 464-465.
(e) It cannot be properly contended that appellants are required to occupy their houses for the Forest Service's sole benefit and not for their own personal benefit, since the occupancy of the houses constitutes part of appellants' "compensation" for services performed and thus concededly is of personal benefit to the employee, and since moreover the Forest Service itself purports to measure the personal benefit of the occupancy to the employee and collects rent in such an amount through deductions from the employee's paycheck. Pp. 465-467.
50 Cal.App.3d 633, 123 Cal.Rptr. 548 (County of Fresno judgment); and County of Tuolumne judgment affirmed.
James B. Waterman, Fresno, Cal., for appellee County of Fresno.
Stephen Dietrich, Jr., Sonora, Cal., for appellee County of Tuolumne.
Howard E. Shapiro, Washington, D. C., for appellants.
Mr. Justice WHITE delivered the opinion of the Court.
1
The issue in this case is whether, consistent with the Federal Government's immunity from state taxation inherent in the Supremacy Clause of the United States Constitution, see McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819), the State of California may tax federal employees on their possessory interests in housing owned and supplied to them by the Federal Government as part of their compensation. We hold that it may.
2
* The individual appellants in this case are employees of the Forest Service, a branch of the United States Department of Agriculture responsible for administering the national forests. These appellants work in the Sierra, Sequoia, and Stanislaus National Forests which are located in Fresno and Tuolumne Counties in California. During the year 1967 each appellant lived with his family in a house which was built and owned by the Forest Service in one of these national forests. Appellants were required by the Forest Service to live in these houses1 so that they would be nearer to the place where they performed their duties and so that they would be better able to perform those duties. Structurally, the houses were very similar to residential houses of the same size available in the private sector. The Forest Service viewed the occupancy of these houses as partial compensation for the services of its employees, and made a deduction from the salary of the employee for each two-week pay period in which the employee occupied such a house. The Forest Service fixed the amount of the deduction by estimating the fair rental value of a similar house in the private sector and then discounting that figure to take account of the distance between the Forest Service house and the nearest established community and the absence, if any, of any customary amenities in or near the house.2 Adjustment was also made for the fact that the Forest Service reserved the right to remove employees from their houses at any time, to enter the houses with or without notice for inspection purposes, and to use part or all of the houses for official purposes in an emergency.
3
Pursuant to 16 U.S.C. § 480, the States retain civil and criminal jurisdiction over the national forests notwithstanding the fact that the national forests are owned by the Federal Government. Under the California Revenue and Taxation Code, §§ 104, 107 (West 1970), and § 21(b) of Title 18 of the California Administrative Code (1971), counties in California are authorized to impose an annual use or property tax on possessory interests in improvements on tax-exempt land.3 The Counties of Fresno and Tuolumne imposed such a tax on the appellants Forest Service employees who live in the federally owned houses in the national forests located in those counties. In computing the value of the possessory interests on which the tax is imposed, the counties used the annual estimated fair rental value of the houses, discounted to take into account essentially the same factors considered by the Forest Service in computing the amount that it deducted from the salaries of employees who used the houses.4
4
Appellants paid the taxes under protest and they, together with the United States, sued for a refund in California courts in Fresno and Tuolumne Counties. They claimed, inter alia, that the tax interfered with a federal function i. e., the running of the Forest Service that it discriminated against employees of the Federal Government and that it was therefore forbidden by the Supremacy Clause of the United States Constitution. E. g., McCulloch v. Maryland, supra. The trial courts each sustained appellants' claims, holding, inter alia, that appellants had no taxable possessory interest under state law. The California Court of Appeal, Fifth Appellate District, reversed, 50 Cal.App.3d 633, 123 Cal.Rptr. 548 (1975) (County of Fresno case, followed in County of Tuolumne case (unreported)). It held that each appellant had a possessory interest in the houses owned by the Forest Service that was subject to taxation under state law. The court then held that the tax on such possessory interests is not a tax on the Federal Government, on Government property, or on a "federal function." Rather, it is a tax imposed on "the private citizen, and it is the private citizen's usufructuary interest in the government land and improvements alone that is being taxed. (City of Detroit v. Murray Corp., 355 U.S. 489, 78 S.Ct. 458, 2 L.Ed.2d 441; United States v. Township of Muskegon, 355 U.S. 484, 78 S.Ct. 483, 2 L.Ed.2d 436; United States v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, 2 L.Ed.2d 424.)" Id., at 640, 123 Cal.Rptr., at 552. Consequently, the court held, the tax is not barred by the Supremacy Clause of the Federal Constitution. The California Court of Appeal also rejected appellants' contention that the tax operates to discriminate against the Federal Government and its employees. The Supreme Court of California denied review. We noted probable jurisdiction to review the decision of the California Court of Appeal, 425 U.S. 970, 96 S.Ct. 2165, 48 L.Ed.2d 793 (1976).
5
Appellants argue that the tax is "a levy upon the activities of the United States" because the occupancy of the houses by the Forest Service employees was "for the sole purpose of discharging their governmental function of running the national forests." Brief for Appellants 11. Consequently, the Government argues, the tax is forbidden by the doctrine announced in M'Culloch v. Maryland, that under the Supremacy Clause of the Federal Constitution the States may not tax the properties, functions, or instrumentalities of the Federal Government. We disagree with the Government, and affirm the judgment below.
II
6
The Government relies principally on the landmark case of M'Culloch v. Maryland. There the State of Maryland imposed a tax on notes issued by "any Bank ... established without authority from the State.5 The only such bank in Maryland was the Bank of the United States, created and incorporated by Act of Congress in order to carry out Congress' enumerated powers. No similar tax was imposed on the issuance of notes by any other bank in Maryland. The Court held the tax to violate that part of the Federal Constitution which declares that the laws of the United States are the "supreme law of the land." An Act of Congress had created the bank in order to carry out functions of the National Government enumerated in the United States Constitution. The Court noted that the power to tax the bank "by the States may be exercised so as to destroy it," 4 Wheat., at 427, and consequently that the power to tax, if admitted, could be exercised so as effectively to repeal the Act of Congress which created the bank. If the State's power to tax the bank were recognized in principle, the Court doubted the ability of federal courts to review each exercise of such power to determine whether the tax would or would not destroy a federal function. Finally, the Court rejected the State's argument that the power to tax involves the power to destroy only where the taxing power is abused, and that the Court should simply trust the States not to abuse their power to tax a federal function just as it must trust a State not to abuse its power to tax its own citizens. The Court rejected the argument because the political check against the abuse of the power to tax a State's constituents is absent when the State taxes only a federal function.6 A State's constituents can be relied on to vote out of office any legislature that imposes an abusively high tax on them. They cannot be relied upon to be similarly motivated when the tax is instead solely on a federal function.
7
The court was careful to limit the reach of its decision. It stated that its opinion does not
8
"extend to a tax ... imposed on the interest which the citizens of Maryland may hold in this institution [the bank], in common with other property of the same description throughout the State." Id., at 436. (Emphasis added.)
9
Since M'Culloch, this Court has adhered to the rule that States may not impose taxes directly on the Federal Government, nor may they impose taxes the legal incidence of which falls on the Federal Government.7 The decisions of this Court since M'Culloch have been less uniform on the question whether taxes, the economic but not the legal incidence of which falls in part or in full on the Federal Government, are invalid.
10
For many years the Court read the decision in M'Culloch as forbidding taxes on those who had contractual relationships with the Federal Government or with its instrumentalities whenever the effect of the tax was or might be to increase the cost to the Federal Government of performing its functions.8 In later years, however, the Court departed from this interpretation of M'Culloch. In James v. Dravo Contracting Co., 302 U.S. 134 (1937), a contractor sought immunity from a state occupation tax measured by the gross receipts, insofar as those receipts had been received under a contract with the Federal Government. The Court declared the tax valid even in "the gross receipts tax may increase the cost to the Government" under the contract. Id., at 160. So long as the tax is not directly laid on the Federal Government, it is valid if nondiscriminatory, id., at 150, or until Congress declares it otherwise. Id., at 161. Similarly, in Graves v. New York ex rel. O'Keefe, 306 U.S. 466 (1939), the Court sustained a nondiscriminatory tax on the income of a federal employee, thereby overruling Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842).9 See also Alabama v. King & Boozer, 314 U.S. 1 (1941), overruling Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 (1928).
11
Finally, and for the purposes of this case dispositively, in City of Detroit v. Murray Corp., 355 U.S. 489 (1958), United States v. City of Detroit, 355 U.S. 466 (1958), and United States v. Township of Muskegon, 355 U.S. 484 (1958), this Court sustained state use taxes on the use by private companies of machinery and other property owned by the United States and leased to them for use in their businesses -- even though in two of these cases the companies had cost-plus contracts with the Government requiring the Government to reimburse them for state taxes paid by them. These cases make clear that a State may, in effect, raise revenues on the basis of property owned by the United States as long as that property is being used by a private citizen or corporation and so long as it is the possession or use by the private citizen that is being taxed. See also Esso Standard Oil Co. v. Evans, 345 U.S. 495 (1953).
12
The rule to be derived from the Court's more recent decisions, then, is that the economic burden on a federal function of a state tax imposed on those who deal with the Federal Government does not render the tax unconstitutional so long as the tax is imposed equally on the other similarly situated constituents of the State.10 This rule returns to the original intent of M'Culloch v. Maryland. The political check against abuse of the taxing power found lacking in M'Culloch, where the tax was imposed solely on the Bank of the United States, is present where the State imposes a nondiscriminatory tax only on its constituents or their artificially owned entities;" and M'Culloch foresaw the unfairness in forcing a State to exempt private individuals with the beneficial interests in federal property from taxes imposed on similar interests held by others in private property. Accordingly, M'Culloch expressly excluded from its rule a tax on "the interest which the citizens of Maryland may hold [n a federal instrumentality] in common with other property of the same description throughout the State." 4 Wheat., at 436.
III
13
Applying the rule set forth above, decision of this case is relatively simple. The "legal incidence" of the tax involved in this case falls neither on the Federal Government nor on federal property. The tax is imposed solely on private citizens who work for the Federal Government. The tax threatens to interfere with federal laws relating to the functions of the Forest Service only insofar as it may impose an economic burden on the Forest Service -- causing it to reimburse its employees for the taxes legally owed by them or, failing reimbursement, removing an advantage otherwise enjoyed by the Federal Government in the employment market.12 There is no other respect in which the tax involved in this case threatens to obstruct or burden a federal function. The tax can be invalidated, then, only if it discriminates against the Forest Service or other federal employees, which it does not do.13
14
Although the tax is imposed by the appellee counties on renters of real property only if the owner is exempt from taxation -- and consequently is not imposed on the vast majority of renters of real property in California -- the tax is not for that reason discriminatory. In this respect this case is governed by United States v. City of Detroit, 355 U.S. 466 (1958). There the city of Detroit imposed a use tax on those who used tax-exempt property owned by the United States. The tax was measured by the value of the property. With respect to nonexempt property, a similar tax was imposed on the owner and none on the user. In answering an argument that the tax discriminated against those dealing with the Federal Government, the Court said:
15
"As suggested before the legislature apparently was trying to equate the tax burden imposed on private enterprise using exempt property with that carried by similar businesses using taxed property. Those using exempt property are required to pay no greater tax than that placed on private owners or passed on by them to their business lessees." Id., at 473-474. (Emphasis added.)
16
Similarly, here the State of California imposes a property tax on owners of nonexempt property which is "passed on by them to their ... lessees." Consequently, the appellants who rent from the Forest Service are no worse off under California Tax laws than those who work for private employers and rent houses in the private sector.
17
The Government argues nonetheless that the appellants are required to occupy the houses owned by the Forest Service not for their own personal benefit but for the sole benefit of the Forest Service and that "[t]here is accordingly no constitutionally permissible way to isolate any 'personal residence' portion of these possessory interests that could be deemed to be unrelated to the official duties of these Forest Service employees." Brief for United States 18.14 The argument is at odds with the Government's own concessions during this lawsuit, with its treatment of its employees apart from this lawsuit, and with common sense. The Government's complaint in this case alleges that the occupancy of the Forest Service houses constitutes part of appellants' "compensation" for services performed -- thus conceding that the occupancy is of personal benefit to the employee. At oral argument the Government conceded that a state income tax could be imposed on the employees for the value of the occupancy -- thus conceding that its value to the employee is capable of being severed from its value to the Forest Service and of being accurately measured. The Forest Service itself purports to measure the personal benefit of the occupancy to the employee and collects rent in such an amount through deductions from the employee's paycheck. Since virtually everyone in this country pays for housing for himself or herself and family, common sense compels the conclusion that the occupancy of a house provided by an employer for an employee's family is of personal financial benefit to the employee -- relieving him of the expense of paying for housing elsewhere.15 The disadvantages attendant on living in Forest Service housing may affect the amount of the value of the house to the employee, but it is unquestionably of some value to him. Here both appellees have sought to take account of these disadvantages and to tax the employees only on the portion of the total value of the houses which may be properly attributed to their possessory interest. In this respect, the taxes are valid even under United States v. Allegheny County, 322 U.S. 174 (1944), see n. 10, supra, so heavily relied on by the Government. There the Court invalidated validated a tax on use by a private corporation of Government-owned property because "the State has made no effort to segregate [the corporation's] interest and tax it." Id., at 187. The Court stated, however:
18
"Actual possession and custody of Government property nearly always are in someone who is not himself the Government but acts in its behalf and for its purposes ... His personal advantages from the relationship by way of salary, profit or beneficial personal use of the property may be taxed as we have held." Id., at 187-188. (Emphasis added.)
19
This statement ripened into holdings in United States v. City of Detroit, supra, at 472, and United States v. Township of Muskegon, 355 U.S. 484 (1958). The only difference between Township of Muskegon -- where Government-owned property was being used by a private corporation in complying with a Government contract -- and this case is that there the property was being used by business for "profit" and here the property is being put to "beneficial personal use." Under the rule of United States v. Allegheny County and United States v. City of Detroit, this difference is inconsequential. The two types of interests are equally taxable.
20
In conclusion, as the Court said in City of Detroit v. Murray Corp., 355 U.S., at 495:
21
"There was no discrimination against the Federal Government, its property or those with whom it does business. There was no crippling obstruction of any of the Government's functions, no sinister effort to hamstring its power, not even the slightest interference with its property. Cf. M'Culloch v. Maryland, 4 Wheat. 316. In such circumstances the Congress is the proper agency, as we pointed out in United States v. City of Detroit, to make the difficult policy decisions necessarily involved in determining whether and to what extent private parties who do business with the Government should be given immunity from state taxes."
22
Affirmed.
23
Mr. JUSTICE STEVENS, dissenting.
24
The application of the California possessory interest tax to federal employees' use of real estate located in a national forest is significantly different from other forms of state taxation and, in my opinion, creates the kind of potential for friction between two sovereigns that the doctrine of constitutional immunity was intended to avoid.
25
* If a State were to tax the income of federal employees without imposing a like tax on others, the tax would be plainly unconstitutional. Cf. M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579. On the other hand, if the State taxes the income of all its residents equally, federal employees must pay the tax. Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927. This case involves a tax more like the former than the latter and in my opinion, is invalid.
26
There are two alternatives between the two extremes just posited. Instead of just taxing federal employees, the State might impose a special tax on both state and federal employees but no one else; or, making the tax base somewhat broader, the State might impose a special tax on employees of all tax-exempt entities, including private organizations. Arguably, in the latter situation, the tax would affect enough voters in the State to provide the type of political safeguard envisioned in M'Culloch and thereby protect federal employees from the risk of disparate treatment. In the former situation, however, that protection might be illusory because the sovereign imposing the tax could adjust the compensation of its own employees to avoid any special tax burden on them and thereby cause the tax to have a significant impact on federal employees and no one else. Under the rationale of M'Culloch, the Supremacy Clause protects federal employees, as well as federal instrumentalities, from that kind of potential discrimination.
A.
27
The California possessory interest tax discriminates against the individual appellants as compared with persons who rent private, nonexempt property. The Federal Government has adopted a policy of charging its employees a rent equal to the fair rental value of their residences as determined by the prevailing rental value of comparable residences in the vicinity of the national forest.1 A federal employee residing in a Forest Service residence and a private tenant residing in a comparable home both pay the same rent. But the federal employee also pays a possessory interest tax while the private tenant does not pay that tax or any other real estate tax.
28
The amount of the possessory interest tax paid by the federal employee is not determined by his rent. Whether the rent collected by the Forest Service is over, under, or equal to the fair rental value of the premises, the employee's tax is the same.2 For the tax is measured by the value of his possessory interest in the real estate, and, under the valuation systems employed by the counties, that value is the same regardless of whether the Federal Government elects to subsidize, in whole or in part, its employee's use of the property. The analogy, ante, at 466, to a state income tax on compensation provided by means of permission to use property for less than its fair rental value is therefore inapplicable.3
29
The discrimination between the federal employee and the private tenant is not eliminated by the fact that the owner of the private residence pays a real estate tax which the Federal Government does not. The private owner's tax obligation is one of the factors that determines the fair rental value of his property and, no doubt, the fair rental value of Government-owned property as well but it is not correct to say that the owner's tax is paid by the tenant. When the private and the public tenant are both charged the same rent, a special tax on the latter is surely not justified by the Federal Government's tax exemption.4 To the extent that the exemption has significance, it provides a limit on the State's taxing power; it cannot provide an affirmative justification for an otherwise invalid tax.5 In short, federal employees like these appellants are required to pay a discriminatory tax; Graves v. New York ex rel. O'Keefe, supra, does not control this case.
B
30
This California tax does not even apply to all users of tax-exempt property. By its terms the possessory interest tax applies only to "publicly owned real property."6 It does not, for example, apply to the residential use of real estate owned by private hospitals, schools, or religious organizations, all of which are exempt from taxation under the laws of California.7 In fact it appears that the only individuals who are similar to the federal employees with respect to the possessory interest tax are state employees living in state-owned houses. But since the State of California, and its political subdivisions, can fix their rent, the State has the practical power to adjust the economic burden of the possessory interest tax assessed against its own tenant employees. Potentially, therefore, the tax may have a practical effect on the Federal Government and its employees which is different from its effect on the owners or users of any other tax-exempt property in the State.
31
Thus, whether the federal tenants are compared with persons occupying property owned by taxpayers or with persons occupying other tax-exempt property, they are vulnerable to a discriminatory tax.
II
32
Whereas the California tax scheme creates a discrimination between users of property that would not otherwise exist, the Michigan taxes upheld in United States v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, 2 L.Ed.2d 424; United States v. Township of Muskegon, 355 U.S. 484, 78 S.Ct. 483, 2 L.Ed.2d 436; and City of Detroit v. Murray Corp. of America, 355 U.S. 489, 78 S.Ct. 458, 2 L.Ed.2d 441, were designed to eliminate disparity in the tax treatment of different users of similar property. The Michigan taxes were designed to equalize the tax burden of competing commercial enterprises whether they used tax-exempt or taxable property in the conduct of their businesses.8
33
The Michigan tax at issue in the first two cases applied to every private party using any type of exempt property in the State. The tax base included not only property owned by the Federal and State Governments, but also all privately owned exempt real estate. In the first case the Court expressly relied on the undisputed evidence that lessees of other exempt property were being taxed as foreclosing any claim of discrimination against those using federal property. 355 U.S., at 474, 78 S.Ct., at 478. In the third case, the tax was a general personal property tax which was applied indiscriminately throughout the State, 355 U.S., at 494, 78 S.Ct., at 461.
34
The critical importance of the absence of any discrimination in the Michigan scheme, and its sharp contrast with the California scheme challenged in this case, are both apparent from this passage:
35
"It still remains true, as it has from the beginning, that a tax may be invalid even though it does not fall directly on the United States if it operates so as to discriminate against the Government or those with whom it deals. Cf. M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579. But here the tax applies to every private party who uses exempt property in Michigan in connection with a business conducted for private gain. Under Michigan law this means persons who use property owned by the Federal Government, the State, its political subdivisions, churches, charitable organizations and a great host of other entities. The class defined is not an arbitrary or invidiously discriminatory one. As suggested before the legislature apparently was trying to equate the tax burden imposed on private enterprise using exempt property with that carried by similar businesses using taxed property. Those using exempt property are required to pay no greater tax than that placed on private owners or passed on by them to their business lessees. In the absence of such equalization the lessees of tax-exempt property might well be given a distinct economic preference over their neighboring competitors, as well as escaping their fair share of local tax responsibility." United States v. City of Detroit, supra, 473-474, 78 S.Ct., at 478 (footnote omitted).
36
The case now before us does not involve any question of economic preference between competing private parties. Indeed, unlike the Michigan cases in which the Court identified as "vital" the fact that the taxpayers were engaged in commercial activities,9 this case only involves an application of the California tax to the use of Government property in the performance of a traditional governmental function: managing the national forests. The Government requires the taxpayer-forester to occupy the property. The Michigan opinions do not hold or imply that required Government service is comparable to private commercial activity. Indeed, as I read those opinions, they direct us to focus on the question whether there is equality or inequality between users of public and private property. The Michigan tax was valid because there was no discrimination between users; the California tax is invalid because it creates such inequality.
III
37
This case is not squarely controlled by M'Culloch v. Maryland because this tax applies to the use of state as well as federal property.10 Apparently, employees of state parks are treated like employees of national forests. If this is sufficient to save the tax, I would suppose the State could tax a soldier's use of Army barracks if the State also taxed its police officers whenever they resided in state quarters. Such a tax, I submit, would be patently invalid for reasons which also apply to this case. It would have an impact on federal servants different from its impact on most constituents of the taxing sovereign; and it would create a significant potential conflict between the interests of two sovereigns in the same territory.
38
As explained by Mr. Justice Frankfurter in his separate opinion in City of Detroit v. Murray Corp. of America, 355 U.S., at 503-504, 78 S.Ct., at 491:
39
"A principle with the uninterrupted historic longevity attributable to the immunity of government property from state taxation has a momentum of authority that reflects, if not a detailed exposition of considerations of policy demanded by our federal system, certainly a deep instinct that there are such considerations, and that the distinction between a tax on government property and a tax on a third person for the privilege of using such property is not an 'empty formalism.' The distinction embodies a considered judgment as to the minimum safeguard necessary for the National Government to carry on its essential functions without hindrance from the exercise of power by another sovereign within the same territory. That in a particular case there may in fact be no conflict in the exercise of the two governmental powers is not to the point. It is in avoiding the potentialities of friction and furthering the smooth operation of complicated governmental machinery that the constitutional doctrine of immunity finds its explanation and justification." The specific distinction which Mr. Justice Frankfurter draws in that paragraph appears to support the validity of the California tax on the use by "a third person" of real estate in a national forest. I do not, of course, know whether Mr. Justice Frankfurter would have regarded a Government employee, like the appellants in this case, as the kind of "third person" whose use of federal property in the performance of a traditional governmental function would be taxed. I am convinced, however, that the principle which he articulated supports the immunity claim of these appellants. I therefore respectfully dissent.
*
Together with United States et al. v. County of Tuolumne, also on appeal from the same court (see this Court's Rule 15(3)).
1
Some of the appellants were not required but simply permitted to live in houses owned by the Forest Service, in the sense that these particular appellants might have been able to live in a privately owned house outside the forest if they had so elected. However, the Forest Service required that some employee occupy each house owned by the Forest Service, and if no employee had volunteered, some employee, perhaps including some of these appellants, would have been required to live there. In light of our disposition of this case, the distinction between employees required to live in Forest Service housing and those permitted to live there is unimportant and we will not refer to it again.
2
Examples of the amenities considered are, according to the testimony of a Forest Service official:
"Paved streets, street lighting at least at intersections, sidewalks, lawns, trees and landscaping, general attractiveness of the neighborhood, community sanitation services, reliability and adequacy of water safe for household use, reliability of (sic ) adequacy of electrical service, reliability and adequacy of telephone service, reliability and adequacy of fuel for heating, hot water and cooking, police protection, fire protection, unusual design features of a dwelling, absence of disturbing noises or offensive odors and standards of maintenance." App. 32.
3
Section 107, Cal.Rev. & Tax. Code (West 1970), provides:
" 'Possessory interests' means the following:
"(a) Possession of, claim to, or right to the possession of land or improvements, except when coupled with ownership of the land or improvements in the same person."
Title 18 Cal.Adm. Code § 21(b) (1971) provides:
" 'Taxable possessory interest' means a possessory interest in nontaxable publicly owned real property, as such property is defined in section 104 of the Revenue and Taxation Code . . . ."
Section 104, Cal.Rev. & Tax. Code (West 1970), provides:
" 'Real estate' or 'real property' includes:
"(a) The possession of, claim to, ownership of, or right to the possession of land."
All parties agree that the national forests owned by the Federal Government are tax-exempt land by reason of the Supremacy Clause of the United States Constitution, e. g. United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209 (1944), and that no tax may be imposed either on the land itself or on the United States.
With respect to non-tax-exempt land, California imposes a property tax on the owner. No tax is imposed directly on a renter of non-tax-exempt land. However, the tax on the owner is presumably reflected in the rent and the renter may thus pay the tax indirectly.
4
In computing the value of appellant's possessory interests on which the tax was imposed, Fresno County used the value of one year of occupancy. Tuolumne County used the present discounted value of five years' occupancy the length of time which it estimated the average Forest Service employee remained in a Forest Service house.
5
The tax was in the form of a forced purchase from a state official of stamped paper on which such notes were required to be printed. The tax could be avoided by an annual lump-sum payment to the state official of $15,000.
6
The Court stated:
"[Normally in] imposing a tax the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation.
"The people of a State, therefore, give to their government a right of taxing themselves and their property, ... resting confidently on the interest of the legislator, and on the influence on the constituents over their representatives, to guard them against its abuse." 4 Wheat., at 428. "...When they tax the chartered institutions of the States, they tax their constituents; and these taxes must be uniform. But, when a State
taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by the people over whom they claim no control. Id., at 435.
Accordingly, the Court concluded:
"The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into the execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared." Id., at 436.
7
Thus the Court invalidated a state law which required a seller of liquor to United States pose exchanges to collect a markup -- the practical equivalent of a tax -- from the post exchange and to remit it to the State Tax Commission. United States v. Mississippi Tax Comm'n, 421 U.S. 599 (1975). There, although the tax was nominally collected from the seller, the legal incidence of the tax was said to fall on the United States because state law required it to be charged to and collected from the United States by the seller. See First Agricultural Nat. Bank v. Tax Comm'n, 392 U.S. 339 (1968). Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110 (1954), heavily relied on by appellants, also stands only for the proposition that the State may not impose a tax the legal incidence of which falls on the
Federal Government. Id., at 122. There the State imposed a sales tax on purchasers. Kern-Limerick, Inc., had a cost-plus contract with the Department of the Navy which provided that all purchases made in furtherance of the contract were made by the Department of the Navy, with Kern-Limerick acting only as its agent. The Court held that the question of who was the purchaser for state-tax purposes was a federal question, and it held the Department of the Navy to be the purchaser and the tax to be thus unenforceable. See also Federal Land Bank v. Bismarck Lumber Co., 314 U.S. 95 (1941); Van Brocklin v. Tennessee, 117 U.S. 151 (1886).
8
E.g., Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842) (holding unconstitutional a state tax on the income of a federal employee); Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 (1928) (holding
unconstitutional a sales tax imposed on one who made sales to the Federal Government); Gillespie v. Oklahoma, 257 U.S. 501 (1922) (holding unconstitutional a state income tax as applied to income generated from property leased from the Federal Government). See also United States v. Rickert, 188 U.S. 432 (1903).
9
In Graves, the Court said:
"The theory, which once won a qualified approval, that a tax on income is legally or economically a tax on its source, is no longer tenable." 306 U.S. at 480.
"[T]he only possible basis for implying a constitutional immunity from state income tax of the salary of an employee of the national government or of a governmental agency is that the economic burden of the tax is in some way passed on so as to impose a burden on the national government tantamount to an interference by one government with the other in the performance of its functions." Id., at 481. (Emphasis added.)
The Court rejected this economic burden as a justification for immunizing the employee from income taxation:
"[T]he purpose of the immunity was not to confer benefits on the employees be relieving them from contributing their share of the financial support of the other government, whose benefits they enjoy, or to give an advantage to a government by enabling it to engage employees at salaries lower than those paid for like services by other employers, public or private, but to prevent undue interference with the one government by imposing on it the tax burdens of the other.
. . . . .
"[A] nondiscriminatory tax laid on the income of all members of the community could not be assumed to obstruct the function which [a government entity] had undertaken to perform, or to cast an economic burden upon them, more than does the general taxation of property and income which, to some extent, incapable of measurement by economists, may tend to raise the price level of labor and materials." Id., at 483-484.
"So much of the burden of a non-discriminatory general tax upon the incomes of employees of a government, state or national, as may be passed on economically to that government, through the effect of the tax on the price level of labor or materials, is but the normal incident of
the organization within the same territory of two governments, each possessing the taxing power." Id., at 487.
10
The single arguable departure from this principle since 1937 is United States v. Allegheny County, 322 U.S. 174 (1944). There the Mesta Machine Company had a contract with the Federal Government to produce field guns for the War Department during 1941. Some of the machinery with which Mesta produced the guns was owned by the United States and was in the possession of Mesta. There were limitation on Mesta's right to use this machinery: Mesta's "leasehold interest [in the machines] is subject to some qualification of the right to use the property except for gun manufacture ... and is perhaps burdened by other contractual conditions." Id., at 186-187. Pennsylvania, the State in which Mesta's factory was located, imposed a property tax on Mesta's land and machinery attached thereto, including the machinery owned by the United States. This Court ruled the tax invalid,
stating: "Mesta has some legal and beneficial interest in this property. It is a bailee for mutual benefit. Whether such a right of possession and use in view of all the circumstances could be taxed by appropriate proceedings we do not decide ... [T]he state has made no effort to segregate Mesta's interest [in the machinery] and tax it. The full value of the property including the whole ownership interest, as well as whatever value proper appraisal might attribute to the leasehold, was included in Mesta's assessment." Ibid.
Insofar as United States v. Allegheny County, supra, holds that a tax measured by the value of Government-owned property may never be imposed on a private party who is using it, that decision has been overruled by United States v. City of Detroit, 355 U.S. 466 (1958), and its companion cases. See id., at 495 (Frankfurter, J., concurring and dissenting). Insofar as it stands for the proposition that Government property used by a private citizen may not be taxed at its full value where contractual restrictions on its use for the Government's benefit render the property less valuable to the user, the case has no application here. Appellee counties have sought to tax only the individual appellants' interests in the Forest Service houses and have reduced their assessments to take account of the limitations on the use of the houses imposed by the Government.
11
A tax on the income of federal employees, or a tax on the possessory interest of federal employees in Government houses, if imposed only on them, could be escalated by a State so as to destroy the federal function performed by them either by making the Federal Government unable to hire anyone or by causing the Federal Government to pay prohibitively high salaries. This danger would never arise, however, if the tax is also imposed on the income and property interests of all other residents and voters of the State.
12
The Federal Government would otherwise have had the power -- enjoyed by no other employer -- of giving its employees housing on which no property tax is paid by them either directly or indirectly as rent paid to a landlord who himself paid a property tax.
13
The Government has expressly abandoned its claim made below, that the tax treats federal employees who live in federally owned houses differently from state employees who lived in state-owned houses.
14
If it were factually accurate that the use of Forest Service housing is of no personal benefit to appellants, the tax would discriminate against those who work for the Federal Government since California imposes no other tax on its citizens with respect to property in which those citizens have no beneficial personal or business interest. The tax would thus run afoul at least of the Supremacy Clause. M'Culloch v. Maryland, 4 Wheat. 316 (1819); United States v. City of Detroit, 355 U.S., at 473.
15
An attempt by California to impose a use tax on a Forest Service employee for his fire ax -- which he used only in performing his job -- or on a fire tower inhabited by such employee in the daytime and solely in order to perform his job would present a different question. The employee does not put either the ax or the tower to "'beneficial personal use,'" and it is not part of his "'profit'" or his "'salary.'" United States v. City of Detroit, supra, at 471. See n. 14, supra.
1
The court below endorsed the undisputed finding of the trial court that this policy was in effect at the time this litigation arose. 50 Cal.App.3d 633, 637, 123 Cal.Rptr. 548, 550 (1975).
2
It is true, as the majority notes, ante, at 466, that appellee counties have sought to tax the individual appellants only on that portion of the total value of the residences which may be properly attributed to their personal, non-job-related, possessory interest. This fact affects the amount of the tax but not its discriminatory character.
3
Although the Federal Government's complaint alleged that the occupancy of the residences constituted part of appellants' "compensation," the proof established that the Forest Service charged its employees the fair rental value of similar houses in the private sector. The state courts so found, see n. 1, supra.
4
The fact that the Federal Government receives higher net rents than those received by private landlords is a consequence of its tax-exempt status which avoids one of the burdens of ownership of property regardless of how the Government elects to use its property.
5
The majority states that the only burden the tax imposes on the Forest Service is economic causing it to reimburse its employees for "the taxes legally owed by them" or, failing reimbursement, removing an advantage otherwise enjoyed by the Government in the employment market, ante, at 464. But an attempt to reimburse all federal employees for taxes legally owed would entail a great deal more than the economic burden represented by the value of the taxes. Appellees Fresno and Tuolumne Counties have different methods of computing the value of the possessory interest, ante, at 456 n. 4. Once these counties determine the assessed valuation of the possessory interests, presumably they apply different tax rates to determine the actual dollar value of each appellant's tax. The Forest Service owns residences in many counties throughout the United States. The administrative burden of determining the correct amount of tax owed on each unique residence operating under myriad payment systems and due dates would be immense. In my judgment, this administrative cost provides another reason why this exercise of a State's taxing power runs afoul of the Supremacy Clause. Moreover, I do not believe the State's power can be exercised in a manner which requires the Federal Government to surrender its own tax exemption in order to protect its employees from a discriminatory tax. I do not understand the relevance of the Federal Government's so-called advantage in the employment market.
6
Title 18 Cal.Adm. Code § 21(b) (1971), quoted ante, at 455 n. 3.
7
See Cedars of Lebanon Hospital v. County of Los Angeles, 35 Cal.2d 729, 221 P.2d 31 (1950) (private hospital); Church Divinity School v. County of Alameda, 152 Cal.App.2d 496, 314 P.2d 209 (1957) (college-level private school); Serra Retreat v. County of Los Angeles, 35 Cal.2d 755, 221 P.2d 59 (1950), and Saint Germain Foundation v. County of Siskiyou, 212 Cal.App.2d 911, 28 Cal.Rptr. 393 (1963) (religious organizations).
8
"The United States asks this Court to strike down as unconstitutional a tax statute of the State of Michigan as applied to a lessee of government property. In general terms this statute, Public Act 189 of 1953, provides that when tax-exempt real property is used by a private party in a business conducted for profit the private party is subject to taxation to the same extent as though he owned the property." United States v. City of Detroit, 355 U.S., at 467, 78 S.Ct., at 475.
9
"The vital thing under the Michigan statute, and we think permissibly so, is that Continental was using the property in connection with its own commercial activities. The case might well be different if the Government had reserved such control over the activities and financial gain of Continental that it could properly be called a 'servant' of the United States in agency terms. But here Continental was not so assimilated by the Government as to become one of its constituent parts. It was free within broad limits to use the property as it thought advantageous and convenient in performing its contracts and maximizing its profits from them." United States v. Township of Muskegon, 355 U.S., at 486, 78 S.Ct., at 485.
The Michigan tax at issue in the first two cases applied only to use in connection with a business conducted for profit, United States v. City of Detroit, 355 U.S., at 467-468, n. 1, 78 S.Ct., at 475.
See also City of Detroit v. Murray Corp. of America, 355 U.S., at 493, 78 S.Ct., at 460, where there is emphasis on the fact that the taxpayer used the Federal Government's personal property "in the course of its own business."
10
In M'Culloch v. Maryland the State taxed notes issued by the Bank of the United States differently from any other property. But if the state tax in that case had applied to a national bank and also to a group of state-operated institutions which the State could subsidize in order to eliminate the economic burden of the tax but to no other taxpayers it surely would have been equally invalid. In such a situation, as in M'Culloch itself and as in this case, the federal instrumentality would have been vulnerable to discriminatory treatment by the State different from that accorded to the State's own constituents.
| 910
|
429 U.S. 501
97 S.Ct. 717
50 L.Ed.2d 723
Thelma B. STANTONv.James Lawrence STANTON, Jr.
No. 76-512.
Jan. 25, 1977.
PER CURIAM.
1
This appeal brings before us for the second time the Utah Supreme Court's construction of Utah Code Ann. § 15-2-1 (1973),1 which established 21 as the age of majority for males, and 18 as the age for females, as applied to a parent's obligation to support his children. In our first opinion, we held that this distinction between males and females violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975) (Stanton I ).2 We, of course, did not decide how Utah was to eliminate the discrimination between the genders, and thereby to determine at what age the appellee's duty to support his daughter terminated. Instead, we remanded the case to the Utah court for it to resolve this issue of state law. Id., at 17-18, 95 S.Ct. 1373. Our mandate also directed that appellant should receive $437.38 for her costs on appeal to this Court.
2
On the remand, the Utah Supreme Court did not consider the issue presented to it and held, instead, that the age-of-majority statute was constitutional as applied to females without considering the discrimination. That action does not comply with our mandate.
3
Upon receiving the mandate in Stanton I, the Utah Supreme Court remanded the case, without directions, to the District Court of Salt Lake County. That court correctly recognized, pursuant to the parties' stipulation, that the only issue before it was whether, in the absence of a validly worded statutory provision governing child-support age of majority, both sexes should be deemed to attain majority either at age 18 or at age 21. It resolved the issue by holding that, "for purposes of child support, children attain their majority at age 21." Accordingly, it awarded appellant a total of $3,646.18, consisting of $2,700 past due support money, $508.80 interest on the judgment, and the $437.38 costs award from this Court.
4
On appeal, the Utah Supreme Court, by a 3-2 vote, reversed. 552 P.2d 112 (1976). Instead of deciding the issue before it, the majority held that the portion of the statute setting the age for females could be viewed in isolation from the portion setting the age for males:
5
"Obviously the two provisions of the statute are separable and the Supreme Court of the United States in remanding this matter directed that we decide which age was correct and then legislate a bit on our own and say that the age of majority so chosen for the one sex is also the age of majority for the other sex.
6
"The oath we took when chosen as justices of the Supreme Court of Utah forbids us to encroach on the duties and functions of the legislature. However, we need not make any such determination. The age of the male child in this divorce case has never been called into question." Id., at 113.
7
The court reasoned that the only child before it was a female and, therefore, that the age of 18 provided in § 15-2-1 was constitutional and still applied. As further support for its result, the court declared that the mother had no interest in the equal protection issue and that the parties expected the age discrepancy to apply when the divorce decree was drafted. Finally, as if to erase any remaining doubt about the basis of its decision, the court declared:
8
"Regardless of what a judge may think about equality, his thinking cannot change the facts of life. . . .
9
"To judicially hold that males and females attain their maturity at the same age is to be blind to the biological facts of life." Id., at 114.
10
The court then undertook to reverse the entire judgment of the District Court, even including the $437.38 derived from this Court's mandate.3
11
This decision, obviously, is inconsistent with our opinion in Stanton I. The thrust of Stanton I, and therefore the starting point for the Utah court on remand, was that males and females cannot be treated differently for child-support purposes consistently with the Equal Protection Clause of the United States Constitution. Cf. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Apparently the Utah Supreme Court did not read our opinion as requiring that the child-support law must be nondiscriminatory to comply with the constitutional standard. That, of course, is a misunderstanding. Accordingly, the judgment of the Utah Supreme Court is vacated, and the case once again is remanded for further proceedings not inconsistent with this opinion.4
12
Mr. Justice STEVENS, dissenting in part.
13
Petitions for rehearing perform the wholesome function of providing the losing litigant with a legitimate forum for adverse comment on an adverse decision. Appellate judges soon learn to discount hyperbole in such petitions.
14
Judges who are reversed by a higher court sometimes need a similar outlet, particularly when they remain convinced that their original decision was correct. For this reason opinions on remand should occasionally be read with tolerance and understanding, and the question whether this Court's mandate has been violated should be answered by reference to the judgment entered by the lower court rather than by reaction to a few unnecessary and unfortunate sentences in a separate opinion joined by only two of six members voting.
15
In 1975 this Court held § 15-2-1 of the Utah Code unconstitutional and directed the State of Utah to eliminate that statute's discrimination between males and females. Utah was free to select the age of 21 or the age of 18 as the age of majority for all its citizens. Thereafter as Justice Ellett pointed out in his separate opinion, the "Legislature of Utah, in an attempt to satisfy the justices of the Supreme Court of the United States, passed an amendment to Section 15-2-1, U.C.A.1953, so that it now reads: 'The period of minority extends in males and females to the age of eighteen years . . ..' "1 This amendment applied only after its passage in 1975.
16
When this case reached the Utah Supreme Court for the second time in 1976, that court held that the pre-amendment age of majority was 18. The reasons given in the three separate opinions of the Justices constituting the majority of the court are not, in my judgment, nearly as persuasive as Justice Maughan's dissenting opinion. But, as Justice Maughan clearly recognized, the state court had the power to decide that the age of majority for both males and females under this statute prior to its amendment was either 18 or 21. The Utah Supreme Court has now held that it was 18. Even though the explanation of that holding makes reference only to females, once that determination has been made as a matter of Utah law, it applies by force of the Federal Constitution to males as well as females. Accordingly, both before and after the 1975 amendment to § 15-2-1, the statutory age of majority for both males and females in Utah was 18, not 21. The lower Utah courts are so interpreting the Utah Supreme Court decision.2
17
The judgment of the Utah Supreme Court was therefore consistent with this Court's mandate, except, of course, for its disallowance of costs. Other than an order allowing appropriate costs, there is no need for any further proceedings (or opinion writing) in that court. I therefore respectfully dissent from this Court's action.
1
"15-2-1. Period of minority. The period of minority extends in males to the age of twenty-one years and in females to that of eighteen years; but all minors obtain their majority by marriage."
2
After the decision in Stanton I, the Utah Legislature amended the statute to read:
"15-2-1. Age of majority. The period of minority extends in males and females to the age of eighteen years; but all minors obtain their majority by marriage. It is further provided that courts in divorce actions may order support to age 21." 1975 Utah Laws, c. 39.
The parties agree that the amendment does not apply to the present controversy.
3
Even the appellee recognizes the impropriety of the reversal of the costs factor, and acknowledges that the $437.38 amount is "due and owing and agrees to pay said amount." Appellee's Motion to Dismiss 13.
4
As we did in Stanton I, we emphasize that Utah is free to adopt either 18 or 21 as the age of majority for both males and females for child-support purposes. The only constraint on its power to choose is the principle set out in Stanton I, and reiterated here, that the two sexes must be treated equally. There are at least two lines of authority that the Utah court legitimately might choose to follow. On the one hand, Utah Code Ann. § 68-3-1 (1968) provides that the common law of England is the rule of decision in the state courts, except where it conflicts with the Constitution or laws of the State or of the United States. Relying on that statute, the Utah court might elect to adopt age 21 as the age of majority in the absence of a valid statute governing child-support cases. On the other hand, the court might take note of the Utah Legislature's response to Stanton I in its enactment of the 1975 amendment of § 15-2-1 and read the amendment as an expression by the legislature that the public policy of Utah is to treat both males and females as adults at the younger age. By suggesting these two options, we do not mean to exhaust all other possibilities; we simply mention them to illustrate the fact that our opinion leaves open this state-law issue for the state courts to decide.
1
552 P.2d 112, 113 (1976).
2
Appellee's statement to that effect in his Motion to Dismiss 3, 10, is not disputed.
| 12
|
429 U.S. 492
97 S.Ct. 711
50 L.Ed.2d 714
State of OREGONv.Carl Ray MATHIASON.
No. 76-201.
Jan. 25, 1977.
PER CURIAM.
1
Respondent Carl Mathiason was convicted of first-degree burglary after a bench trial in which his confession was critical to the State's case. At trial he moved to suppress the confession as the fruit of questioning by the police not preceded by the warnings required in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court refused to exclude the confession because it found that Mathiason was not in custody at the time of the confession.
2
The Oregon Court of Appeals affirmed respondent's conviction, but on his petition for review in the Supreme Court of Oregon that court by a divided vote reversed the conviction. It found that although Mathiason had not been arrested or otherwise formally detained, "the interrogation took place in a 'coercive environment' " of the sort to which Miranda was intended to apply. The court conceded that its holding was contrary to decisions in other jurisdictions, and referred in particular to People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172 (1969). The State of Oregon has petitioned for certiorari to review the judgment of the Supreme Court of Oregon. We think that court has read Miranda too broadly, and we therefore reverse its judgment.
3
The Supreme Court of Oregon described the factual situation surrounding the confession as follows:
4
"An officer of the State Police investigated a theft at a residence near Pendleton. He asked the lady of the house which had been burglarized if she suspected anyone. She replied that the defendant was the only one she could think of. The defendant was a parolee and a 'close associate' of her son. The officer tried to contact defendant on three or four occasions with no success. Finally, about 25 days after the burglary, the officer left his card at defendant's apartment with a note asking him to call because 'I'd like to discuss something with you.' The next afternoon the defendant did call. The officer asked where it would be convenient to meet. The defendant had no preference; so the officer asked if the defendant could meet him at the state patrol office in about an hour and a half, about 5:00 p. m. The patrol office was about two blocks from defendant's apartment. The building housed several state agencies.
5
"The officer met defendant in the hallway, shook hands and took him into an office. The defendant was told he was not under arrest. The door was closed. The two sat across a desk. The police radio in another room could be heard. The officer told defendant he wanted to talk to him about a burglary and that his truthfulness would possibly be considered by the district attorney or judge. The officer further advised that the police believed defendant was involved in the burglary and (falsely stated that) defendant's fingerprints were found at the scene. The defendant sat for a few minutes and then said he had taken the property. This occurred within five minutes after defendant had come to the office. The officer then advised defendant of his Miranda rights and took a taped confession.
6
"At the end of the taped conversation the officer told defendant he was not arresting him at this time; he was released to go about his job and return to his family. The officer said he was referring the case to the district attorney for him to determine whether criminal charges would be brought. It was 5:30 p. m. when the defendant left the office.
7
"The officer gave all the testimony relevant to this issue. The defendant did not take the stand either at the hearing on the motion to suppress or at the trial." 275 Or. 1, 3-4, 549 P.2d 673, 674 (1976).
8
The Supreme Court of Oregon reasoned from these facts that:
9
"We hold the interrogation took place in a 'coercive environment.' The parties were in the offices of the State Police; they were alone behind closed doors; the officer informed the defendant he was a suspect in a theft and the authorities had evidence incriminating him in the crime; and the defendant was a parolee under supervision. We are of the opinion that this evidence is not overcome by the evidence that the defendant came to the office in response to a request and was told he was not under arrest." Id., at 5, 549 P.2d, at 675.
10
(1) Our decision in Miranda set forth rules of police procedure applicable to "custodial interrogation." "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S., at 444, 86 S.Ct., at 1612. Subsequently we have found the Miranda principle applicable to questioning which takes place in a prison setting during a suspect's term of imprisonment on a separate offense, Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), and to questioning taking place in a suspect's home, after he has been arrested and is no longer free to go where he pleases, Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).
11
In the present case, however, there is no indication that the questioning took place in a context where respondent's freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a 1/2-hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody "or otherwise deprived of his freedom of action in any significant way."
12
(2-4) Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a "coercive environment." Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him "in custody." It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.
13
The officer's false statement about having discovered Mathiason's fingerprints at the scene was found by the Supreme Court of Oregon to be another circumstance contributing to the coercive environment which makes the Miranda rationale applicable. Whatever relevance this fact may have to other issues in the case, it has nothing to do with whether respondent was in custody for purposes of the Miranda rule.
14
The petition for certiorari is granted, the judgment of the Oregon Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.
15
So ordered.
16
Mr. Justice BRENNAN would grant the writ but dissents from the summary disposition and would set the case for oral argument.
17
Mr. Justice MARSHALL, dissenting.
18
The respondent in this case was interrogated behind closed doors at police headquarters in connection with a burglary investigation. He had been named by the victim of the burglary as a suspect, and was told by the police that they believed he was involved. He was falsely informed that his fingerprints had been found at the scene, and in effect was advised that by cooperating with the police he could help himself. Not until after he had confessed was he given the warnings set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
19
The Court today holds that for constitutional purposes all this is irrelevant because respondent had not " 'been taken into custody or otherwise deprived of his freedom of action in any significant way.' " Ante, at 494, quoting Miranda v. Arizona, supra, at 444, 86 S.Ct., at 1612. I do not believe that such a determination is possible on the record before us. It is true that respondent was not formally placed under arrest, but surely formalities alone cannot control. At the very least, if respondent entertained an objectively reasonable belief that he was not free to leave during the questioning, then he was "deprived of his freedom of action in a significant way."1 Plainly the respondent could have so believed, after being told by the police that they thought he was involved in a burglary and that his fingerprints had been found at the scene. Yet the majority is content to note that "there is no indication that . . . respondent's freedom to depart was restricted in any way," ante, at 495, as if a silent record (and no state-court findings) means that the State has sustained its burden, see Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972), of demonstrating that respondent received his constitutional due.2
20
More fundamentally, however, I cannot agree with the Court's conclusion that if respondent were not in custody no warnings were required. I recognize that Miranda is limited to custodial interrogations, but that is because, as we noted last Term, the facts in the Miranda cases raised only this "narrow issue." Beckwith v. United States, 425 U.S. 341, 345, 96 S.Ct. 1612, 1615, 48 L.Ed.2d 1 (1976). The rationale of Miranda, however, is not so easily cabined.
21
Miranda requires warnings to "combat" a situation in which there are "inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." 384 U.S., at 467, 86 S.Ct. at 1624. It is of course true, as the Court notes, that "(a)ny interview of one suspected of a crime by a police officer will have coercive aspects to it." Ante, at 495. But it does not follow that because police "are not required to administer Miranda warnings to everyone whom they question," ibid., that they need not administer warnings to anyone, unless the factual setting of the Miranda cases is replicated. Rather, faithfulness to Miranda requires us to distinguish situations that resemble the "coercive aspects" of custodial interrogation from those that more nearly resemble "(g)eneral on-the-scene questioning . . . or other general questioning of citizens in the fact-finding process" which Miranda states usually can take place without warnings. 384 U.S., at 477, 86 S.Ct., at 1629.
22
In my view, even if respondent were not in custody, the coercive elements in the instant case were so pervasive as to require Miranda -type warnings.3 Respondent was interrogated in "privacy" and in "unfamiliar surroundings," factors on which Miranda places great stress. Id., at 449-450, 86 S.Ct., at 1614-1615; see also Beckwith v. United States, supra, at 346 n. 7, 96 S.Ct., at 1616. The investigation had focused on respondent. And respondent was subjected to some of the "deceptive stratagems," Miranda v. Arizona, supra, at 455, 86 S.Ct., at 1617, which called forth the Miranda decision. I therefore agree with the Oregon Supreme Court that to excuse the absence of warnings given these facts is "contrary to the rationale expressed in Miranda." 275 Or. 1, 5, 549 P.2d 673, 675 (1976).4
23
The privilege against self-incrimination "has always been 'as broad as the mischief against which it seeks to guard.' " Miranda v. Arizona, supra, at 459-460, 86 S.Ct., at 1620, quoting Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110 (1892). Today's decision means, however, that the Fifth Amendment privilege does not provide full protection against mischiefs equivalent to, but different from, custodial interrogation.5 See also Beckwith v. United States, supra. It is therefore important to note that the state courts remain free, in interpreting state constitutions, to guard against the evil clearly identified by this case.6
24
I respectfully dissent.
25
Mr. Justice STEVENS, dissenting.
26
In my opinion the issues presented by this case are too important to be decided summarily. Of particular importance is the fact that the respondent was on parole at the time of his interrogation in the police station. This fact lends support to inconsistent conclusions.
27
On the one hand, the State surely has greater power to question a parolee about his activities than to question someone else. Moreover, as a practical matter, it seems unlikely that a Miranda warning would have much effect on a parolee's choice between silence and responding to police interrogation. Arguably, therefore, Miranda warnings are entirely inappropriate in the parole context.
28
On the other hand, a parolee is technically in legal custody continuously until his sentence has been served. Therefore, if a formalistic analysis of the custody question is to determine when the Miranda warning is necessary, a parolee should always be warned. Moreover, Miranda teaches that even if a suspect is not in custody, warnings are necessary if he is "otherwise deprived of his freedom of action in any significant way." If a parolee being questioned in a police station is not described by that language, today's decision qualifies that part of Miranda to some extent. I believe we would have a better understanding of the extent of that qualification, and therefore of the situations in which warnings must be given to a suspect who is not technically in custody, if we had the benefit of full argument and plenary consideration.
29
I therefore respectfully dissent from the Court's summary disposition.
1
See, e. g., United States v. Hall, 421 F.2d 540, 544-545 (C.A.2 1969) (Friendly, J.); Lowe v. United States, 407 F.2d 1391 (C.A.9 1969); People v. Arnold, 66 Cal.2d 438, 58 Cal.Rptr. 115, 426 P.2d 515 (1967); People v. P., 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255 (1967). See also cases collected in Annot., 31 A.L.R.3d 565, 581-583 (1970 and Supp.1976).
It has been noted that as a logical matter, a person who honestly but unreasonably believes he is in custody is subject to the same coercive pressures as one whose belief is reasonable; this suggests that such persons also are entitled to warnings. See, e. g., LaFave, "Street Encounters" and the Constitution: Terry, Sibron, Peters, and Beyond, 67 Mich.L.Rev. 39, 105 (1968); Smith, The Threshold Question in Applying Miranda: What Constitutes Custodial Interrogation?, 25 S.C.L.Rev. 699, 711-714 (1974).
2
The Court's action is particularly inappropriate because the record of this case has not been transmitted to us, and thus our knowledge of the facts is limited to the information contained in the petition and in the opinions of the state courts.
3
I do not rule out the possibility that lesser warnings would suffice when a suspect is not in custody but is subjected to a highly coercive atmosphere. See, e. g., Beckwith v. United States, 425 U.S. 341, 348-349, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976) (Marshall, J., concurring in judgment); ALI, Model Code of Pre-Arraignment Procedure § 110.1(2) (Approved Draft 1975) (suspects interrogated at police station must be advised of their right to leave and right to consult with counsel, relatives, or friends).
4
See also Graham, What is "Custodial Interrogation?": California's Anticipatory Application of Miranda v. Arizona, 14 UCLA L.Rev. 59, 81-82 (1966); Smith, supra, n. 1, at 732, 735.
5
I trust today's decision does not suggest that police officers can circumvent Miranda by deliberately postponing the official "arrest" and the giving of Miranda warnings until the necessary incriminating statements have been obtained.
6
See, e. g., South Dakota v. Opperman, 428 U.S. 364, 384, 96 S.Ct. 3092, 3104, 49 L.Ed.2d 1000 (1976) (Marshall, J., dissenting); Baxter v. Palmigiano, 425 U.S. 308, 324, 338-339, 96 S.Ct. 1551, 1561, 1567-1568, 47 L.Ed.2d 810 (1976) (Brennan, J., dissenting); Michigan v. Mosley, 423 U.S. 96, 120-121, 96 S.Ct. 321, 334-335, 46 L.Ed.2d 313 (1975) (Brennan, J., dissenting); Wilkes, The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 Ky.L.J. 421 (1974); Wilkes, More on the New Federalism in Criminal Procedure, 63 Ky.L.J. 873 (1975).
In Opperman, this Court reversed a decision of the South Dakota Supreme Court holding that routine inventory searches of impounded automobiles, made without probable cause or consent, violated the Fourth Amendment. The case was remanded, like this one, "for further proceedings not inconsistent with (the) opinion." 428 U.S., at 376, 96 S.Ct., at 3100. On remand, the South Dakota Supreme Court held that such searches violated a nearly identical provision of the State Constitution, and that therefore the seized evidence should have been suppressed. State v. Opperman, 89 S.D. —-, 228 N.W.2d 152 (1976).
| 01
|
429 U.S. 477
97 S.Ct. 690
50 L.Ed.2d 701
BRUNSWICK CORPORATION, Petitioner,v.PUEBLO BOWL-O-MAT, INC., et al.
No. 75-904.
Argued Nov. 3, 1976.
Decided Jan. 25, 1977.
Syllabus
Respondents, bowling centers in three distinct markets, brought this antitrust action against petitioner, one of the two largest bowling equipment manufacturers and the largest operator of bowling centers, claiming that petitioner's acquisitions of competing bowling centers that had defaulted in payments for bowling equipment that they had purchased from petitioner might substantially lessen competition or tend to create a monopoly in violation of § 7 of the Clayton Act. Respondents sought treble damages pursuant to § 4 of the Act as well as injunctive and other relief. At trial they sought to prove that petitioner because of its size had the capacity to lessen competition in the markets it had entered by driving smaller competitors out of business. To establish damages, respondents attempted to show that had petitioner allowed the defaulting centers to close, respondents' profits would have increased. The jury returned a verdict for damages in favor of respondents, which the District Court trebled in accordance with § 4. The Court of Appeals, while endorsing the legal theories upon which respondents' claim was based, reversed the case and remanded for further proceedings because of errors in the trial court's instructions to the jury. The court concluded that a properly instructed jury could have found that a "giant" like petitioner entering a market of "pygmies" might lessen horizontal retail competition. The court also concluded that there was sufficient evidence to permit a jury to find that but for petitioner's actions, the acquired centers would have gone out of business. The court held that if a jury were to make such findings, respondents would be entitled to damages for threefold the income they would have earned. Petitioner's petition for certiorari challenged the theory that the Court of Appeals had approved for awarding damages. Held:
1. For plaintiffs in an antitrust action to recover treble damages on account of § 7 violations, they must prove more than that they suffered injury which was causally linked to an illegal presence in the market; they must prove injury of the type that the antitrust laws were intended to prevent and that flows from that which makes the defendants' acts unlawful. The injury must reflect the anticompetitive effect of either the violation or of anticompetitive acts made possible by the violation. Pp. 484-489.
(a) Section 4 is essentially a remedial provision, and to recover damages respondents must prove more than that petitioner violated § 7. Pp. 485-487.
(b) Congress has condemned mergers only when they may produce anticompetitive effects; yet under the Court of Appeals' holding, once a merger is found to violate § 7, all dislocations that the merger caused are actionable regardless of whether the dislocations have anything to do with the reason the merger was condemned. Here if the acquisitions were unlawful it is because they brought a "deep pocket" parent into a market of "pygmies," but respondents' injury is unrelated to the size of either the acquiring company or its competitors; it would have suffered the identical loss but without any recourse had the acquired centers secured refinancing or had they been bought by a "shallow pocket" parent. Pp. 487-488.
2. Petitioner is entitled under Fed.Rule Civ.Proc. 50(b) to judgment on the damages claim notwithstanding the verdict, since respondents' case was based solely on their novel theory, rejected herein, of damages ascribable to profits they would have received had the acquired centers been closed, and since respondents have not shown any reason to require a new trial. P. 489-490.
3. Respondents remain free on remand to seek equitable relief. P. 491.
3 Cir., 523 F.2d 262, vacated and remanded.
Bernard G. Segal, Philadelphia, Pa., for petitioner.
Malcolm A. Hoffmann, New York City, for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case raises important questions concerning the interrelationship of the antimerger and private damages action provisions of the Clayton Antitrust Act.
2
* Petitioner is one of the two largest manufacturers of bowling equipment in the United States. Respondents are three of the 10 bowling centers owned by Treadway Companies, Inc. Since 1965, petitioner has acquired and operated a large number of bowling centers, including six in the markets in which respondents operate. Respondents instituted this action contending that these acquisitions violated various provisions of the antitrust laws.
3
In the late 1950's, the bowling industry expanded rapidly, and petitioner's sales of lanes, automatic pinsetters, and ancillary equipment rose accordingly.1 Since this equipment requires a major capital expenditure $12,600 for each lane and pinsetter, App. A1576 most of petitioner's sales were for secured credit.
4
In the early 1960's, the bowling industry went into a sharp decline. Petitioner's sales quickly dropped to preboom levels. Moreover, petitioner experienced great difficulty in collecting money owed it; by the end of 1964 over $100,000,000, or more than 25%, of petitioner's accounts were more than 90 days delinquent. Id., at A1884. Repossessions rose dramatically, but attempts to sell or lease the repossessed equipment met with only limited success.2 Because petitioner had borrowed close to $250,000,000 to finance its credit sales, id., at A1900, it was, as the Court of Appeals concluded, "in serious financial difficulty." NBO Industries Treadway Cos., Inc. v. Brunswick Corp., 523 F.2d 262, 267 (CA3 1975).
5
To meet this difficulty, petitioner began acquiring and operating defaulting bowling centers when their equipment could not be resold and a positive cash flow could be expected from operating the centers. During the seven years preceding the trial in this case, petitioner acquired 222 centers, 54 of which it either disposed of or closed. Ibid. These acquisitions made petitioner by far the largest operator of bowling centers, with over five times as many centers as its next largest competitor. Ibid. Petitioner's net worth in 1965 was more than eight times greater, and its gross revenue more than seven times greater, than the total for the 11 next largest bowling chains. App. A1675. Nevertheless, petitioner controlled only 2% of the bowling centers in the United States. Id., at A1096.
6
At issue here are acquisitions by petitioner in the three markets in which respondents are located: Pueblo, Colo., Poughkeepsie, N. Y., and Paramus, N. J. In 1965, petitioner acquired one defaulting center in Pueblo, one in Poughkeepsie, and two in the Paramus area. In 1969, petitioner acquired a third defaulting center in the Paramus market, and in 1970 petitioner acquired a fourth. Petitioner closed its Poughkeepsie center in 1969 after three years of unsuccessful operation; the Paramus center acquired in 1970 also proved unsuccessful, and in March 1973 petitioner gave notice that it would cease operating the center when its lease expired. The other four centers were operational at the time of trial.
7
Respondents initiated this action in June 1966, alleging, inter alia, that these acquisitions might substantially lessen competition or tend to create a monopoly in violation of § 7 of the Clayton Act, 15 U.S.C. § 18.3 Respondents sought damages, pursuant to § 4 of the Act, 15 U.S.C. § 15, for three times "the reasonably expectable profits to be made (by respondents) from the operation of their bowling centers." App. A24. Respondents also sought a divestiture order, an injunction against future acquisitions, and such "other further and different relief" as might be appropriate under § 16 of the Act, 15 U.S.C. § 26. App. A27.
8
Trial was held in the spring of 1973, following an initial mistrial due to a hung jury. To establish a § 7 violation, respondents sought to prove that because of its size, petitioner had the capacity to lessen competition in the markets it had entered by driving smaller competitors out of business. To establish damages, respondents attempted to show that had petitioner allowed the defaulting centers to close, respondents' profits would have increased. At respondents' request, the jury was instructed in accord with respondents' theory as to the nature of the violation and the basis for damages. The jury returned a verdict in favor of respondents in the amount of $2,358,030, which represented the minimum estimate by respondents of the additional income they would have realized had the acquired centers been closed. Id., at A1737. As required by law, the District Court trebled the damages.4 It also awarded respondents costs and attorneys' fees totaling $446,977.32, and, sitting as a court of equity, it ordered petitioner to divest itself of the centers involved here, Treadway Cos. v. Brunswick Corp., 389 F.Supp. 996 (N.J.1974). Petitioner appealed.5
9
The Court of Appeals, while endorsing the legal theories upon which respondents' claim was based, reversed the judgment and remanded the case for further proceedings. NBO Industries Treadway Cos. v. Brunswick Corp., supra. The court found that a properly instructed jury could have concluded that petitioner was a "giant" whose entry into a "market of pygmies" might lessen horizontal retail competition, because such a "giant"
10
"has greater ease of entry into the market, can accomplish cost-savings by investing in new equipment, can resort to low or below cost sales to sustain itself against competition for a longer period, and can obtain more favorable credit terms." 523 F.2d, at 268.
11
The court also found that there was sufficient evidence to permit a jury to conclude that but for petitioner's actions, the acquired centers would have gone out of business. Id., at 273, 275-277. And the court held that if a jury were to make such findings, respondents would be entitled to damages for threefold the income they would have earned. After reviewing the instructions on these issues, however, the court decided that the jury had not been properly charged and that therefore a new trial was required. Id., at 275-277.6 It also decided that since "an essential predicate" for the District Court's grant of equitable relief was the jury verdict on the § 7 claim, the equitable decree should be vacated as well. Id., at 277-278. And it concluded that in any event equitable relief "should be restricted to preventing those practices by which a deep pocket market entrant harms competition. . . . (D)ivestiture was simply inappropriate." Id., at 279.
12
Both sides petitioned this Court for writs of certiorari. Brunswick's petition challenged the theory the Court of Appeals had approved for awarding damages; the plaintiffs' petition challenged the Court of Appeals' conclusions with respect to the jury instructions and the appropriateness of a divestiture order.7 We granted Brunswick's petition.8 424 U.S. 908, 96 S.Ct. 1101, 47 L.Ed.2d 311 (1976).
II
13
The issue for decision is a narrow one. Petitioner does not presently contest the Court of Appeals' conclusion that a properly instructed jury could have found the acquisitions unlawful. Nor does petitioner challenge the Court of Appeals' determination that the evidence would support a finding that had petitioner not acquired these centers, they would have gone out of business and respondents' income would have increased. Petitioner questions only whether antitrust damages are available where the sole injury alleged is that competitors were continued in business, thereby denying respondents an anticipated increase in market shares.9
14
To answer that question it is necessary to examine the antimerger and treble-damages provisions of the Clayton Act. Section 7 of the Act proscribes mergers whose effect "may be substantially to lessen competition, or to tend to create a monopoly." (Emphasis added.) It is, as we have observed many times, a prophylactic measure, intended "primarily to arrest apprehended consequences of intercorporate relationships before those relationships could work their evil . . . ." 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). See also Brown Shoe Co. v. United States, 370 U.S. 294, 317-318, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962); United States v. Philadelphia Nat. Bank, 374 U.S. 321, 362-363, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963); United States v. Penn-Olin Chemical Co., 378 U.S. 158, 170-171, 84 S.Ct. 1710, 12 L.Ed.2d 775 (1964); United States v. Von's Grocery Co., 384 U.S. 270, 277, 86 S.Ct. 1478, 16 L.Ed.2d 555 (1966); FTC v. Procter & Gamble Co., 386 U.S. 568, 577-578, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967); Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 201, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974).
15
Section 4, in contrast, is in essence a remedial provision. It provides treble damages to "(a)ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws . . . ." Of course, treble damages also play an important role in penalizing wrongdoers and deterring wrongdoing, as we also have frequently observed. Perma Life Mufflers v. International Parts Corp., 392 U.S. 134, 139, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968); Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 502, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969); Zenith Radio Corp. v. Hazeltine Research, 395 U.S. 100, 130, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); Hawaii v. Standard Oil Co., 405 U.S. 251, 262, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972). It nevertheless is true that the treble-damages provision, which makes awards available only to injured parties, and measures the awards by a multiple of the injury actually proved, is designed primarily as a remedy.10
16
Intermeshing a statutory prohibition against acts that have a potential to cause certain harms with a damages action intended to remedy those harms is not without difficulty. Plainly, to recover damages respondents must prove more than that petitioner violated § 7, since such proof establishes only that injury may result. Respondents contend that the only additional element they need demonstrate is that they are in a worse position than they would have been had petitioner not committed those acts. The Court of Appeals agreed, holding compensable any loss "causally linked" to "the mere presence of the violator in the market." 523 F.2d, at 272-273. Because this holding divorces antitrust recovery from the purposes of the antitrust laws without a clear statutory command to do so, we cannot agree with it.
17
Every merger of two existing entities into one, whether lawful or unlawful, has the potential for producing economic readjustments that adversely affect some persons. But Congress has not condemned mergers on that account; it has condemned them only when they may produce anticompetitive effects. Yet under the Court of Appeals' holding, once a merger is found to violate § 7, all dislocations caused by the merger are actionable, regardless of whether those dislocations have anything to do with the reason the merger was condemned. This holding would make § 4 recovery entirely fortuitous, and would authorize damages for losses which are of no concern to the antitrust laws.11
18
Both of these consequences are well illustrated by the facts of this case. If the acquisitions here were unlawful, it is because they brought a "deep pocket" parent into a market of "pygmies." Yet respondents' injury the loss of income that would have accrued had the acquired centers gone bankrupt bears no relationship to the size of either the acquiring company or its competitors. Respondents would have suffered the identical "loss" but no compensable injury had the acquired centers instead obtained refinancing or been purchased by "shallow pocket" parents as the Court of Appeals itself acknowledged, 523 F.2d, at 279.12 Thus, respondents' injury was not of "the type that the statute was intended to forestall," Wyandotte Co. v. United States, 389 U.S. 191, 202, 88 S.Ct. 379, 386, 19 L.Ed.2d 407 (1967).13
19
But the antitrust laws are not merely indifferent to the injury claimed here. At base, respondents complain that by acquiring the failing centers petitioner preserved competition, thereby depriving respondents of the benefits of increased concentration. The damages respondents obtained are designed to provide them with the profits they would have realized had competition been reduced. The antitrust laws, however, were enacted for "the protection of competition not competitors," Brown Shoe Co. v. United States, 370 U.S., at 320, 82 S.Ct., at 1521. It is inimical to the purposes of these laws to award damages for the type of injury claimed here.
20
Of course, Congress is free, if it desires, to mandate damages awards for all dislocations caused by unlawful mergers despite the peculiar consequences of so doing. But because of these consequences, "we should insist upon a clear expression of a congressional purpose," Hawaii v. Standard Oil Co., 405 U.S., at 264, 92 S.Ct., at 892, before attributing such an intent to Congress. We can find no such expression in either the language or the legislative history of § 4. To the contrary, it is far from clear that the loss of windfall profits that would have accrued had the acquired centers failed even constitutes "injury" within the meaning of § 4. And it is quite clear that if respondents were injured, it was not "by reason of anything forbidden in the antitrust laws": while respondents' loss occurred "by reason of" the unlawful acquisitions, it did not occur "by reason of" that which made the acquisitions unlawful.
21
We therefore hold that the plaintiffs to recover treble damages on account of § 7 violations, they must prove more than injury causally linked to an illegal presence in the market. Plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. It should, in short, be "the type of loss that the claimed violations . . . would be likely to cause." Zenith Radio Corp. v. Hazeltine Research, 395 U.S., at 125, 89 S.Ct., at 1577.14
III
22
We come, then, to the question of appropriate disposition of this case. At the very least, petitioner is entitled to a new trial, not only because of the instructional errors noted by the Court of Appeals that are not at issue here, see n. 6, supra, but also because the District Court's instruction as to the basis for damages was inconsistent with our holding as outlined above. Our review of the record, however, persuades us that a new trial on the damages claim is unwarranted. Respondents based their case solely on their novel damages theory which we have rejected. While they produced some conclusory testimony suggesting that in operating the acquired centers petitioner had abused its deep pocket by engaging in anticompetitive conduct,15 they made no attempt to prove that they had lost any income as a result of such predation.16 Rather, their entire proof of damages was based on their claim to profits that would have been earned had the acquired centers closed. Since respondents did not prove any cognizable damages and have not offered any justification for allowing respondents, after two trials and over 10 years of litigation, yet a third opportunity to do so, it follows that, petitioner is entitled, in accord with its motion made pursuant to Rule 50(b), to judgment on the damages claim notwithstanding the verdict. Neely v. Eby Constr. Co., 386 U.S. 317, 326-330, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967); United States v. Generes, 405 U.S. 93, 106-107, 92 S.Ct. 827, 31 L.Ed.2d 62 (1972).
23
Respondents' complaint also prayed for equitable relief, and the Court of Appeals held that if respondents established a § 7 violation, they might be entitled to an injunction against "those practices by which a deep pocket market entrant harms competition." 523 F.2d, at 279. Because petitioner has not contested this holding, respondents remain free, on remand, to seek such a decree.
24
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
25
It is so ordered.
1
Sales of automatic pinsetters, for example, went from 1,890 in 1956, to 16,288 in 1961. App. A1866.
2
Repossessions of pinsetters increased from 300 in 1961 to 5,996 in 1965. Ibid. In 1963, petitioner resold over two-thirds of the pinsetters repossessed; more typically, only one-third were resold, and in 1965, less than one-quarter were resold. Id., at A1879.
3
The complaint contained two additional counts. Count one alleged that petitioner had violated § 1 of the Sherman Act, 15 U.S.C. § 1, by fixing resale prices for bowling supplies sold by petitioner to respondents. This count was abandoned prior to trial. Count two alleged that by virtue of the acquisitions and other acts, petitioner was guilty of monopolization or an attempt to monopolize in violation of § 2 of the Sherman Act, 15 U.S.C. § 2. The jury found for petitioner on this count, and respondents did not appeal.
The complaint also named as plaintiffs National Bowl-O-Mat, the predecessor to Treadway Companies, and the seven other bowling center subsidiaries of Treadway. These plaintiffs were unsuccessful on all counts, however, and they did not appeal the judgments entered against them.
4
Judgment ultimately was entered for $6,575,040, which is $499,050 less than three times the jury's damages award, after respondent Pueblo Bowl-O-Mat consented to a remittitur which the District Court proposed as an alternative to a retrial on damages. Treadway Cos. v. Brunswick Corp., 364 F.Supp. 316, 324-326 (N.J.1973). The remittitur was deemed necessary because the jury apparently awarded damages to that respondent in accord with its minimum claim dating back to 1963, when the alleged § 2 violation began, rather than back to 1965, when the alleged § 7 violation began. The District Court thought that the jury might have been confused by the instruction to use the same methods for calculating damages under the two sections. Ibid.
5
Petitioner's appeal and respondents' cross-appeal with respect to the amount of the attorneys' fee award initially were dismissed by the Court of Appeals for want of jurisdiction because the District Court had neither disposed of respondents' equitable claim nor certified the judgment entered on the legal claims pursuant to Fed.Rule Civ.Proc. 54(b). Treadway Cos. v. Brunswick Corp., 500 F.2d 1400 (CA3 1974) (order reported); App. A1563-A1566 (per curiam opinion reprinted). The District Court then certified the previously entered judgment, and the parties reappealed. While the appeals were pending, the District Court granted equitable relief, and the appeal from that judgment was consolidated with the pending appeals.
6
With respect to the instruction on the issue of liability, the court concluded that since petitioner's acquisitions "did not increase concentration," the District Court had erred by focusing on the size of the market shares acquired by petitioner rather than on "indicators of qualitative substantiality" such as the "relative financial strength of Brunswick, Treadway, and other competitors," or "any retail market advantage" enjoyed by petitioner because of its status as financier and manufacturer. NBO Industries Treadway Cos. v. Brunswick Corp., 523 F.2d, at 274-275 (CA3 1975). With respect to the instruction on damages, the Court of Appeals concluded that the District Court had failed to direct the jury to decide whether petitioner's actions were responsible for keeping the acquired centers in business before considering how much additional income respondents would have earned if the acquired centers had been closed. Id., at 276-277.
The Court of Appeals also held, id., at 275, that in instructing the jury on the statutory requirement that the acquired company be "engaged . . . in commerce," the District Court had not anticipated this Court's decision in United States v. American Bldg. Maint. Industries, 422 U.S. 271, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975), which read the "in commerce" requirement more restrictively than had the leading decision of the Third Circuit, Transamerica Corp. v. Board of Governors, 206 F.2d 163, cert. denied, 346 U.S. 901, 74 S.Ct. 225, 98 L.Ed. 401 (1953). Indeed, the court indicated that there might not be sufficient evidence in the record to satisfy the "in commerce" test. 523 F.2d at 271. The court concluded, however, that given the change in the law, it would be "unjust" to find the evidence insufficient and thereby deny plaintiffs an opportunity to meet the new test on retrial.
7
Both petitions also questioned the Court of Appeals' decision to require relitigation of the "in commerce" issue, see n. 6, supra. Brunswick maintained it was entitled to a directed verdict on this issue; plaintiffs argued that they had satisfied the new test and that therefore no new trial was required.
8
The grant of certiorari excluded the question Brunswick sought to present concerning the sufficiency of the evidence that the acquired companies were engaged "in commerce," see nn. 6, 7, supra.
No action has been taken with respect to respondents' petition.
9
Petitioner raises this issue directly through the first question presented, and indirectly through the second, which asks:
"Does not the 'failing company' principle require dismissal of a treble-damage action based on alleged violations of Section 7 of the Clayton Act where the plaintiffs' entire damage theory is based on the premise that the 'acquired' businesses would have failed and disappeared from the market had the defendant not kept them alive by making the challenged 'acquisitions?' " Pet. for Cert. 3.
In light of our holding, we have no occasion to consider the applicability of the failing-company defense to the conglomerate-like acquisitions involved here.
10
Treble-damages antitrust actions were first authorized by § 7 of the Sherman Act, 26 Stat. 210 (1890). The discussions of this section on the floor of the Senate indicate that it was conceived of primarily as a remedy for "(t) he people of the United States as individuals," especially consumers. 21 Cong.Rec. 1767-1768 (1890) (remarks of Sen. George); see id., at 2612 (Sens. Teller and Reagan), 2615 (Sen. Coke), 3146-3149. Treble damages were provided in part for punitive purposes, id., at 3147 (Sen. George), but also to make the remedy meaningful by counterbalancing "the difficulty of maintaining a private suit against a combination such as is described" in the Act. Id., at 2456 (Sen. Sherman).
When Congress enacted the Clayton Act in 1914, it "extend(ed) the remedy under section 7 of the Sherman Act" to persons injured by virtue of any antitrust violation. H.R.Rep.No.627, 63d Cong., 2d Sess., 14 (1914). The initial House debates concerning provisions related to private damages actions reveal that these actions were conceived primarily as "open(ing) the door of justice to every man, whenever he may be injured by those who violate the antitrust laws, and giv(ing) the injured party ample damages for the wrong suffered." 51 Cong.Rec. 9073 (1914) (remarks of Rep. Webb); see, e. g., id., at 9079 (Rep. Volstead), 9270 (Rep. Carlin), 9414-9417, 9466-9467, 9487-9495. The House debates following the conference committee report, however, indicate that the sponsors of the bill also saw treble-damages suits as an important means of enforcing the law. Id., at 16274-16275 (Rep. Webb), 16317-16319 (Rep. Floyd). In the Senate there was virtually no discussion of the enforcement value of private actions, even though the bill was attacked as lacking meaningful sanctions, e. g., id., at 15818-15821 (Sen. Reed), 16042-16046 (Sen. Norris).
11
See Areeda, Antitrust Violations Without Damage Recoveries, 89 Harv.L.Rev. 1127, 1130-1136 (1976); Symposium, Private Enforcement of the Antimerger Laws, 31 Record of N.Y.C.B.A., 239, 260-261 (1976).
12
Conversely, had petitioner acquired thriving centers acquisitions at least as violative of § 7 as the instant acquisitions respondents would not have lost any income that they otherwise would have received.
13
For instances in which plaintiffs unsuccessfully sought damages for injuries unrelated to the reason the merger was prohibited, see Reibert v. Atlantic Richfield, Co., 471 F.2d 727 (CA10), cert. denied, 411 U.S. 938, 93 S.Ct. 1900, 36 L.Ed.2d 399 (1973); Peterson v. Borden Co., 50 F.2d 644 (CA7 1931); Kirihara v. Bendix Corp., 306 F.Supp. 72 (Haw. 1969); Goldsmith v. St. Louis-San Francisco R. Co., 201 F.Supp. 867 (WDNC 1962).
14
See generally GAF Corp. v. Circle Floor Co., 463 F.2d 752 (CA2 1972), cert. dismissed, 413 U.S. 901 (1973); Comment, Section 7 of the Clayton Act: The Private Plaintiff's Remedies, 7 B.C.Ind. & Comm.L.Rev. 333 (1966); Comment, Treble Damage Actions for Violations of Section 7 of the Clayton Act, 38 U.Chi.L.Rev. 404 (1971).
This does not necessarily mean, as the Court of Appeals feared, 523 F.2d at 272, that § 4 plaintiffs must prove an actual lessening of competition in order to recover. The short-term effect of certain anticompetitive behavior predatory below-cost pricing, for example may be to stimulate price competition. But competitors may be able to prove antitrust injury before they actually are driven from the market and competition is thereby lessened. Of course, the case for relief will be strongest where competition has been diminished. See, e. g., Calnetics Corp. v. Volkswagen of America, Inc., 532 F.2d 674 (CA9 1976); Metric Hosiery Co. v. Spartans Industries, Inc., 50 F.R.D. 50 (S.D.N.Y.1970); Klingsberg, Bull's Eyes and Carom Shots: Complications and Conflicts on Standing to Sue and Causation Under Section 4 of the Clayton Act, 16 Antitrust Bull. 351, 364 (1971).
15
Respondents' testimony concerned price reductions at three centers, App. A.170, A420, A431; unjustified capital expenses at three centers, id., at A503-A506, A829-A830; and extravagant "give-aways," id., at A169-A170, A222-A223, A413-A414, A569. This testimony is rather unimpressive when viewed against both petitioner's contemporaneous business records which reveal that it did not lower prices when it took over the centers, Defendant's Exhibits D-32, D-33, D-36, D-38, and respondents' own exhibits, which demonstrate that petitioner made a profit at two centers, App. A1700, generated a positive cash flow at three others, id., at A1717, A1720, and closed the two centers that were unsuccessful, id., at A1725, A1733.
16
One of respondents' witnesses did testify that he knew of one bowling league in Pueblo that had shifted from a respondent to petitioner after petitioner installed faster automatic pinsetters. Id., at 508. Assuming, arguendo, that such installations were not cost justified and constituted a form of predation, respondents still made no attempt to quantify the loss.
| 78
|
429 U.S. 610
97 S.Ct. 861
51 L.Ed.2d 80
UNITED STATES STEEL CORPORATION et al., Petitioners,v.FORTNER ENTERPRISES, INC.
No. 75-853.
Argued Nov. 1, 1976.
Decided Feb. 22, 1977.
Syllabus
In exchange for respondent real estate development corporation's promise to purchase prefabricated houses to be erected on certain land, petitioner United States Steel Corp.'s Home Division (the manufacturer of the houses) and petitioner Credit Corp., a wholly owned subsidiary that provides financing to the Home Division's customers, agreed to finance respondent's cost of acquiring and developing the land. After difficulties arose while the development was in progress, respondent brought a treble-damages action against petitioners, alleging that the transaction was a tying arrangement forbidden by the Sherman Act, because the competition for prefabricated houses (the tied product) was restrained by petitioners' abuse of power over credit (the tying product). After this Court, in a prior review of the case upon reversing a summary judgment in petitioners' favor, held that the agreement affected a "not insubstantial" amount of commerce in the tied product and that respondent was entitled to an opportunity to prove that petitioners possessed "appreciable economic power" in the market for the tying product, the District Court ultimately held that the evidence justified the conclusion that petitioners did have sufficient economic power in the credit market to make the tying arrangement unlawful, and the Court of Appeals affirmed. That evidence related to four propositions: (1) petitioner Credit Corp. and the Home Division were owned by one of the Nation's largest corporations; (2) petitioners entered into tying arrangements with a significant number of customers in addition to respondent; (3) the Home Division charged respondent a noncompetitive price for its prefabricated houses; and (4) the financing provided to respondent was "unique," primarily because it covered 100% of respondent's acquisition and development costs. Held: The record does not support the conclusion that petitioners had appreciable economic power in the market for credit, the tying product. Where the record merely shows that the credit terms are unique because the seller was willing to accept a lesser profit or to incur greater risks than its competitors, such uniqueness does not give rise to any inference of economic power in the credit market. The unusual credit bargain offered to respondent proves nothing more than a willingness to provide cheap financing in order to sell expensive houses, and without any evidence that the Credit Corp. had some cost advantage over its competitors or could offer a form of financing that was significantly differentiated from that which other lenders could offer if they so elected the unique character of its financing does not support the lower courts' conclusion that petitioners had the kind of economic power that respondent had the burden of proving in order to prevail. Pp. 614-622.
523 F.2d 961, reversed.
Macdonald Flinn, New York City, for petitioners.
Kenneth L. Anderson, Louisville, Ky., for respondent.
Mr. Justice STEVENS delivered the opinion of the Court.
1
In exchange for respondent's promise to purchase prefabricated houses to be erected on land near Louisville, Ky., petitioners agreed to finance the cost of acquiring and developing the land. Difficulties arose while the development was in progress, and respondent (Fortner) commenced this treble-damages action, claiming that the transaction was a tying arrangement forbidden by the Sherman Act. Fortner alleged that competition for prefabricated houses (the tied product) was restrained by petitioners' abuse of power over credit (the tying product). A summary judgment in favor of petitioners was reversed by this Court. Fortner Enterprises v. United States Steel Co., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (Fortner I ). We held that the agreement affected a "not insubstantial" amount of commerce in the tied product and that Fortner was entitled to an opportunity to prove that petitioners possessed "appreciable economic power" in the market for the tying product. The question now presented is whether the record supports the conclusion that petitioners had such power in the credit market.1
2
The conclusion that a violation of § 1 of the Sherman Act2 had been proved was only reached after two trials. At the first trial following our remand, the District Court directed a verdict in favor of Fortner on the issue of liability, and submitted only the issue of damages to the jury. The jury assessed damages, before trebling, of $93,200. The Court of Appeals reversed the directed verdict and remanded for a new trial on liability. 452 F.2d 1095 (CA6 1971), cert. denied, 406 U.S. 919, 92 S.Ct. 1773, 32 L.Ed.2d 119. The parties then waived the jury; the trial judge heard additional evidence, and entered extensive findings of fact which were affirmed on appeal. 523 F.2d 961 (6 Cir. 1975). Both courts held that the findings justified the conclusion that petitioners had sufficient economic power in the credit market to make the tying arrangement unlawful.
3
Before explaining why we disagree with the ultimate conclusion of the courts below, we first describe the tying arrangement and then summarize the findings on the economic-power issue.
4
* Only the essential features of the arrangement between the parties need be described. Fortner is a corporation which was activated by an experienced real estate developer for the purpose of buying and improving residential lots. One petitioner, United States Steel Corp., operates a "Home Division" which manufactures and assembles components of prefabricated houses; the second petitioner, the "Credit Corp.," is a wholly owned subsidiary, which provides financing to customers of the Home Division in order to promote sales. Although their common ownership and control make it appropriate to regard the two as a single seller, they sell two separate products prefabricated houses and credit. The credit extended to Fortner was not merely for the price of the homes. Petitioners agreed to lend Fortner over $2,000,000 in exchange for Fortner's promise to purchase the components of 210 homes for about $689,000. The additional borrowed funds were intended to cover Fortner's cost of acquiring and developing the vacant real estate, and the cost of erecting the houses.
5
The impact of the agreement on the market for the tied product (prefabricated houses) is not in dispute. On the one hand, there is no claim nor could there be that the Home Division had any dominance in the prefabricated housing business. The record indicates that it was only moderately successful, and that its sales represented a small fraction of the industry total.3 On the other hand, we have already held that the dollar value of the sales to respondent was sufficient to meet the "not insubstantial" test described in earlier cases. See 394 U.S., at 501-502, 89 S.Ct. at 1257-58. We therefore confine our attention to the source of the tying arrangement petitioners' "economic power" in the credit market.
II
6
The evidence supporting the conclusion that the Credit Corp. had appreciable economic power in the credit market relates to four propositions: (1) petitioner Credit Corp. and the Home Division were owned by one of the Nation's largest corporations; (2) petitioners entered into tying arrangements with a significant number of customers in addition to Fortner; (3) the Home Division charged respondent a noncompetitive price for its prefabricated homes; and (4) the financing provided to Fortner was "unique," primarily because it covered 100% of Fortner's acquisition and development costs.
7
The Credit Corp. was established in 1954 to provide financing for customers of the Home Division. The United States Steel Corp. not only provided the equity capital, but also allowed the Credit Corp. to use its credit in order to borrow money from banks at the prime rate. Thus, although the Credit Corp. itself was not a particularly large company, it was supported by a corporate parent with great financial strength.
8
The Credit Corp.'s loan policies were primarily intended to help the Home Division sell its products.4 It extended credit only to customers of the Home Division, and over two-thirds of the Home Division customers obtained such financing. With few exceptions, all the loan agreements contained a tying clause comparable to the one challenged in this case. Petitioner's home sales in 1960 amounted to $6,747,353. Since over $4,600,000 of these sales were tied to financing provided by the Credit Corp.,5 it is apparent that the tying arrangement was used with a number of customers in addition to Fortner.
9
The least expensive house package that Fortner purchased from the Home Division cost about $3,150. One witness testified that the Home Division's price was $455 higher than the price of comparable components in a conventional home; another witness, to whom the District Court made no reference in its findings, testified that the Home Division's price was $443 higher than a comparable prefabricated product. Whether the price differential was as great as 15% is not entirely clear, but the record does support the conclusion that the contract required Fortner to pay a noncompetitive price for the Home Division's houses.
10
The finding that the credit extended to Fortner was unique was based on factors emphasized in the testimony of Fortner's expert witness, Dr. Masten, a professor with special knowledge of lending practices in the Kentucky area. Dr. Masten testified that mortgage loans equal to 100% of the acquisition and development cost of real estate were not otherwise available in the Kentucky area; that even though Fortner had a deficit of $16,000, its loan was not guaranteed by a shareholder, officer, or other person interested in its business; and that the interest rate of 6% represented a low rate under prevailing economic conditions.6 Moreover, he explained that the stable price levels at the time made the risk to the lender somewhat higher than would have been the case in a period of rising prices. Dr. Masten concluded that the terms granted to respondent by the Credit Corp. were so unusual that it was almost inconceivable that the funds could have been acquired from any other source. It is a fair summary of his testimony, and of the District Court's findings, to say that the loan was unique because the lender accepted such a high risk and the borrower assumed such a low cost.
11
The District Court also found that banks and federally insured savings and loan associations generally were prohibited by law from making 100% land acquisition and development loans, and "that other conventional lenders would not have made such loans at the time in question since they were not prudent loans due to the risk, involved." App. 1596.
12
Accordingly, the District Court concluded "that all of the required elements of an illegal tie-in agreement did exist since the tie-in itself was present, a not insubstantial amount of interstate commerce in the tied product was restrained and the Credit Corporation did possess sufficient economic power or leverage to effect such restraint." Id., at 1602.
III
13
Without the finding that the financing provided to Fortner was "unique," it is clear that the District Court's findings would be insufficient to support the conclusion that the Credit Corp. possessed any significant economic power in the credit market.
14
Although the Credit Corp. is owned by one of the Nation's largest manufacturing corporations, there is nothing in the record to indicate that this enabled it to borrow funds on terms more favorable than those available to competing lenders, or that it was able to operate more efficiently than other lending institutions. In short, the affiliation between the petitioners does not appear to have given the Credit Corp. any cost advantage over its competitors in the credit market. Instead, the affiliation was significant only because the Credit Corp. provided a source of funds to customers of the Home Division. That fact tells us nothing about the extent of petitioners' economic power in the credit market.
15
The same may be said about the fact that loans from the Credit Corp. were used to obtain house sales from Fortner and others. In some tying situations a disproportionately large volume of sales ofthe tied product resulting from only a few strategic sales of the tying product may reflect a form of economic "leverage" that is probative of power in the market for the tying product. If, as some economists have suggested, the purpose of a tie-in is often to facilitate price discrimination, such evidence would imply the existence of power that a free market would not tolerate.7 But in this case Fortner was only required to purchase houses for the number of lots for which it received financing. The tying product produced no commitment from Fortner to purchase varying quantities of the tied product over an extended period of time. This record, therefore, does not describe the kind of "leverage" found in some of the Court's prior decisions condemning tying arrangements.8
16
The fact that Fortner and presumably other Home Division customers as well paid a noncompetitive price for houses also lends insufficient support to the judgment of the lower court. Proof that Fortner paid a higher price for the tied product is consistent with the possibility that the financing was unusually inexpensive9 and that the price for the entire package was equal to, or below, a competitive price. And this possibility is equally strong even though a number of Home Division customers made a package purchase of homes and financing.10
17
The most significant finding made by the District Court related to the unique character of the credit extended to Fortner. This finding is particularly important because the unique character of the tying product has provided critical support for the finding of illegality in prior cases. Thus, the statutory grant of a patent monopoly in International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; the copyright monopolies in United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, and United States v. Loew's Inc., 371 U.S. 38, 83 S.Ct. 97, 9 L.Ed.2d 11; and the extensive land holdings in Northern Pacific R. Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545,11 represented tying products that the Court regarded as sufficiently unique to give rise to a presumption of economic power.12
18
As the Court plainly stated in its prior opinion in this case, these decisions do not require that the defendant have a monopoly or even a dominant position throughout the market for a tying product. See 394 U.S. at 502-503, 89 S.Ct. at 1258. They do, however, focus attention on the question whether the seller has the power, within the market for the tying product, to raise prices or to require purchasers to accept burdensome terms that could not be exacted in a completely competitive market.13 In short, the question is whether the seller has some advantage not shared by his competitors in the market for the tying product.
19
Without any such advantage differentiating his product from that of his competitors, the seller's product does not have the kind of uniqueness considered relevant in prior tying-clause cases.14 The Court made this point explicitly when it remanded this case for trial:
20
"We do not mean to accept petitioner's apparent argument that market power can be inferred simply because the kind of financing terms offered by a lending company are 'unique and unusual.' We do mean, however, that uniquely and unusually advantageous terms can reflect a creditor's unique economic advantages over his competitors." 394 U.S., at 505, 89 S.Ct. at 1259.
An accompanying footnote explained:
21
"Uniqueness confers economic power only when other competitors are in some way prevented from offering the distinctive product themselves. Such barriers may be legal, as in the case of patented and copyrighted products, e. g., International Salt; Loew's, or physical, as when the product is land, e. g., Northern Pacific. It is true that the barriers may also be economic, as when competitors are simply unable to produce the distinctive product profitably, but the uniqueness test in such situations is somewhat confusing since the real source of economic power is not the product itself but rather the seller's cost advantage in producing it." Id., at 505 n. 2, 89 S.Ct., at 1259.
22
Quite clearly, if the evidence merely shows that credit terms are unique because the seller is willing to accept a lesser profit or to incur greater risks than its competitors, that kind of uniqueness will not give rise to any inference of economic power in the credit market. Yet this is, in substance, all that the record in this case indicates.
23
The unusual credit bargain offered to Fortner proves nothing more than a willingness to provide cheap financing in order to sell expensive houses.15 Without any evidence that the Credit Corp. had some cost advantage over its competitors or could offer a form of financing that was significantly differentiated from that which other lenders could offer if they so elected the unique character of its financing does not support the conclusion that petitioners had the kind of economic power which Fortner had the burden of proving in order to prevail in this litigation.
24
The judgment of the Court of Appeals is reversed.
25
So ordered.
26
Mr. Chief Justice BURGER, with whom Mr. Justice REHNQUIST joins, concurring.
27
I concur in the Court's opinion and write only to emphasize what the case before us does not involve; I join on the basis of my understanding of the scope of our holding. Today's decision does not implicate ordinary credit sales of only a single product and which therefore cannot constitute a tying arrangement subject to per se scrutiny under § 1 of the Sherman Act. In contrast to such transactions, we are dealing here with a peculiar arrangement expressly found by the Court in Fortner I to involve two separate products sold by two separate corporations. Fortner Enterprises v. United States Steel Corp., 394 U.S. 495, 507, 89 S.Ct. 1252, 1260, 22 L.Ed.2d 495 (1969). Consequently, I read the Court's assumption that a tie-in existed in this case, required as it is by the law of the case, to cast no doubt on the legality of credit financing by manufacturers or distributors.
1
As explained at the outset of the opinion, Fortner I involved "a variety of questions concerning the proper standards to be applied by a United States district court in passing on a motion for summary judgment in a civil antitrust action." 394 U.S. at 496, 89 S.Ct. at 1255. Petitioners do not ask us to re-examine Fortner I, which left only the economic-power question open on the issue of whether a per se violation could be proved. On the other hand, Fortner has not pursued the suggestion in Fortner I that it might be able to prove a § 1 violation under the rule-of-reason standard. 394 U.S. at 500, 89 S.Ct. at 1257. Thus, with respect to § 1, only the economic-power issue is before us.
In Fortner I, the Court noted that Fortner also alleged a § 2 violation, namely, that petitioners "conspired together for the purpose of . . . acquiring a monopoly in the market for prefabricated houses." 394 U.S. at 500, 89 S.Ct. at 1257. The District Court held that a § 2 violation had been proved. Although the Court of Appeals did not reach this issue, a remand is unnecessary. It is clear that neither the District Court's findings of fact nor the record supports the conclusion that § 2 was violated. The District Court found only that "the defendants did combine or conspire to increase sales of prefabricated house packages by United States Steel Corporation by the making of loans to numerous builders containing the tie-in provision" and that "the sole purpose of the loan programs of the Credit Corporation was specifically and deliberately to increase the share of the market of United States Steel Corporation in prefabricated house packages . . . ." App. 1603 (emphasis added). But "increasing sales" and "increasing market share" are normal business goals, not forbidden by § 2 without other evidence of an intent to monopolize. The evidence in this case does not bridge the gap between the District Court's findings of intent to increase sales and its legal conclusion of conspiracy to monopolize. Moreover, petitioners did not have a large market share or dominant market position. See n. 3, infra. No inference of intent to monopolize can be drawn from the fact that a firm with a small market share has engaged in nonpredatory competitive conduct in the hope of increasing sales. Yet as we conclude, infra, at 621-622, that is all the record in this case shows.
2
26 Stat. 209, as amended, 15 U.S.C. § 1.
3
In 1960, for example, the Home Division sold a total of 1,793 houses for $6,747,353. There were at least four larger prefabricated home manufacturers, the largest of which sold 16,804 homes in that year. In the following year the Home Division's sales declined while the sales of each of its four principal competitors remained steady or increased.
4
After reviewing extensive evidence taken from the files of the Credit Corp., including a memorandum stating that "our only purpose in making the loan . . . is shipping houses," the District Court expressly found "that the Credit Corporation was not so much concerned with the risks involved in loans but whether they would help sell houses." App. 1588-1589.
5
This figure is not stated in the District Court's findings; it is derived from the finding of total sales and the finding that 68% of the sales in 1960 were made to dealers receiving financial assistance from the Credit Corp. See id., at 1589-1590.
6
The prime rate at the time was 5% or 51/2%.
7
See Bowman, Tying Arrangements and the Leverage Problem, 67 Yale L.J. 19 (1957).
8
See, e. g., United Shoe Machinery v. United States, 258 U.S. 451, 42 S.Ct. 363, 66 L.Ed. 708; International Business Machines v. United States, 298 U.S. 131, 56 S.Ct. 701, 80 L.Ed. 1085; International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20. In his article in the 1969 Supreme Court Review 16, Professor Dam suggests that this kind of leverage may also have been present in Northern Pacific R. Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545.
9
Fortner's expert witness agreed with the statement:
"The amount of the loan as a percentage of the collateral or security is only one element in determining its advantage to a borrower. The other relevant factors include the rate of interest charged, whether the lender discounts the amount loaned or charges service for (sic ) other fees and maturity in terms of repayment." App. 1686.
10
Relying on Advance Business Systems & Supply Co. v. SCM Corp., 415 F.2d 55 (CA4 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 101, Fortner contends that acceptance of the package by a significant number of customers is itself sufficient to prove the seller's economic power. But this approach depends on the absence of other explanations for the willingness of buyers to purchase the package. See 415 F.2d, at 68. In the Northern Pacific case, for instance, the Court explained:
"The very existence of this host of tying arrangements is itself compelling evidence of the defendant's great power, at least where, as here, no other explanation has been offered for the existence of these restraints. The 'preferential routing' clauses conferred no benefit on the purchasers or lessees. While they got the land they wanted by yielding their freedom to deal with competing carriers, the defendant makes no claim that it came any cheaper than if the restrictive clauses had been omitted. In fact any such price reduction in return for rail shipments would have quite plainly constituted an unlawful rebate to the shipper. So far as the Railroad was concerned its purpose obviously was to fence out competitors, to stifle competition." 356 U.S., at 7-8, 78 S.Ct. at 519. (footnote omitted).
As this passage demonstrates, this case differs from Northern Pacific because use of the tie-in in this case can be explained as a form of price competition in the tied product, whereas that explanation was unavailable to the Northern Pacific Railway.
11
The Court in Northern Pacific concluded that the railroad "possessed substantial economic power by virtue of its extensive landholdings" and then described those holdings as follows:
"As pointed out before, the defendant was initially granted large acreages by Congress in the several North-western States through which its lines now run. This land was strategically located in checkerboard fashion amid private holdings and within economic distance of transportation facilities. Not only the testimony of various witnesses but common sense makes it evident that this particular land was often prized by those who purchased or leased it and was frequently essential to their business activities." Id., at 7, 78 S.Ct. at 519.
12
"Since one of the objectives of the patent laws is to reward uniqueness, the principle of these cases was carried over into antitrust law on the theory that the existence of a valid patent on the tying product, without more, establishes a distinctiveness sufficient to conclude that any tying arrangement involving the patented product would have anti-competitive consequences." United States v. Loew's Inc., 371 U.S. 38, 46, 83 S.Ct. 97, 103, 9 L.Ed.2d 11.
13
"Accordingly, the proper focus of concern is whether the seller has the power to raise prices, or impose other burdensome terms such as a tie-in, with respect to any appreciable number of buyers within the market." 394 U.S., at 504, 89 S.Ct. at 1259.
Professor Dam correctly analyzed the burden of proof imposed on Fortner by this language. In his article in the 1969 Supreme Court Review, 25-26, he reasoned:
"One important question in interpreting the Fortner decision is the meaning of this language. Taken out of context, it might be thought to mean that, just as the 'host of tying arrangements' was 'compelling evidence' of 'great power' in Northern Pacific, so the inclusion of tie-in clauses in contracts with 'any appreciable numbers of buyers' establishes market power. But the passage read in context does not warrant this interpretation. For the immediately preceding sentence makes clear that market power in the sense of power over price must still exist. If the price could have been raised but the tie-in was demanded in lieu of the higher price, then and presumably only then would the requisite economic power exist. Thus, despite the broad language available for quotation in later cases, the treatment of the law on market power is on close reading not only consonant with the precedents but in some ways less far-reaching than Northern Pacific and Loew's, which could be read to make actual market power irrelevant." (Footnotes omitted.)
14
One commentator on Fortner I noted:
"The Court's uniqueness test is adequate to identify a number of situations in which this type of foreclosure is likely to occur. Whenever there are some buyers who find a seller's product uniquely attractive, and are therefore willing to pay a premium above the price of its nearest substitute, the seller has the opportunity to impose a tie to some other good." Note, The Logic of Foreclosure: Tie-In Doctrine after Fortner v. U. S. Steel, 79 Yale L.J. 86, 93-94 (1969).
15
The opinion of the Court in Fortner I notes that smaller companies might not have the "financial strength to offer credit comparable to that provided by larger competitors under tying arrangements." 394 U.S., at 509, 89 S.Ct. at 1261. Fortner's expert witness was unaware of the financing practices of competing sellers of prefabricated homes, App. 1691-1692, but there is nothing to suggest that they were unable to offer comparable financing if they chose to do so.
| 78
|
429 U.S. 642
97 S.Ct. 833
51 L.Ed.2d 106
UNITED STATESv.BOARD OF SUPERVISORS OF WARREN COUNTY, MISSISSIPPI et al.
No. 76-489.
Feb. 22, 1977.
PER CURIAM.
1
The motion of Eddie Thomas et al. for leave to file a brief, as amici curiae, is granted.
2
In November 1970, the Board of Supervisors of Warren County, Miss., submitted a county redistricting plan to the Attorney General for his approval under § 5 of the Voting Rights Act of 1965.1 The new plan was to replace a plan in effect since 1929. After requesting and receiving additional information, the Attorney General entered an objection to the plan. Despite this objection, the Board held elections in 1971 pursuant to the 1970 plan. After the elections, the Board sought reconsideration of the objection. The Attorney General refused to withdraw the objection and in 1973 filed a complaint, pursuant to § 5, in the District Court for the Southern District of Mississippi. The complaint alleged that the Attorney General's objection to the 1970 redistricting plan rendered that plan unenforceable under § 5, and that the election districts in effect prior to the 1970 redistricting were malapportioned under the Fourteenth Amendment. Three forms of relief were requested: (1) a declaration that implementation of the 1970 plan violated § 5; (2) an injunction against implementing the 1970 plan or any other new plan until there had been compliance with one of the two procedures required by § 5; and (3) an order that a new redistricting plan be developed and implemented after being found acceptable under § 5.
3
A properly convened three-judge court granted the Government's motion for summary judgment. In its later order implementing that judgment, the court found that because the upcoming 1975 County elections could not be held as scheduled "without abridging rights guaranteed by the Fourteenth and Fifteenth Amendments to the Constitution," the elections had to be stayed subject to compliance with the procedure set out in the court's order. The order provided that the County submit a redistricting plan to the Attorney General for § 5 review and, if no objection were interposed, that elections then be held in accordance with a stipulated schedule. In the event that the County submitted no plan by a stated deadline, or that the Attorney General objected to a submitted plan, or that a submitted plan contained infirmities with respect to the one-person-one-vote requirements of the Fourteenth Amendment, the court would consider plans prepared by both parties and adopt an appropriate redistricting plan to be used in elections held according to the ordered schedule.
4
The County then informally submitted two plans to the Attorney General for comment and the Attorney General indicated his reservations concerning the validity of the plans. This impasse continued until the deadline in the court's order, after which time the court directed the parties to file their proposed plans for its consideration. After a hearing, the court adopted one of the plans prepared by the County despite the fact that the plan had not been approved pursuant to § 5 procedures. The court found that the adopted plan "neither dilutes black voting strength nor is deficient in one-man, one-vote considerations." It ordered that the county's districts be reorganized according to the plan and that elections be held. The United States appealed. This Court has jurisdiction under 42 U.S.C. § 1973c and 28 U.S.C. § 1253.
5
Section 5 provides for two alternative methods by which a State or political subdivision covered by the Act may satisfy the requirement of federal scrutiny of changes in voting procedures. First, the State or political subdivision may institute an action in the District Court for the District of Columbia for a declaratory judgment that the proposed change does not have the purpose or effect of abridging the right to vote on account of race; second, it may submit the proposed change to the Attorney General. No new voting practice or procedure may be enforced unless the State or political subdivision has succeeded in its declaratory judgment action or the Attorney General has declined to object to a proposal submitted to him. See n. 1, supra. Attempts to enforce changes that have not been subjected to § 5 scrutiny may be enjoined by any three-judge district court in a suit brought by a voter, Allen v. State Board of Elections, 393 U.S. 544, 554-563, 89 S.Ct. 817, 826-830, 22 L.Ed.2d 1 (1969), or by the Attorney General on behalf of the United States, Voting Rights Act of 1965, §§ 12(d), (f), 42 U.S.C. §§ 1973j(d), (f).
6
In Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971), this Court held that the separate procedures of § 5 imposed a limitation on the determinations that may be made by district courts entertaining actions brought to enjoin § 5 violations:
7
"What is foreclosed to such district court is what Congress expressly reserved for consideration by the District Court for the District of Columbia or the Attorney General the determination whether a covered change does or does not have the purpose or effect 'of denying or abridging the right to vote on account of race or color.' " 400 U.S., at 385, 91 S.Ct. at 135.
8
Adhering to Allen, the Court held that the inquiry of a local district court in a § 5 action against a State or political subdivision is "limited to the determination whether 'a (voting) requirement is covered by § 5, but has not been subjected to the required federal scrutiny.' " 400 U.S., at 383, 91 S.Ct. at 434, quoting Allen v. State Board of Elections, supra, 393 U.S., at 561, 89 S.Ct. at 829. This holding was subsequently reaffirmed in Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975).
9
Allen, Perkins, and Connor involved private suits by voters claiming noncompliance with § 5 procedures; we now hold that the same limitations on the inquiry of local district courts apply in § 5 actions brought by the Attorney General. The limitation inheres in Congress' determination that only the District Court for the District of Columbia has jurisdiction to consider the issue of whether a proposed change actually discriminates on account of race and that other district courts may consider § 5 "coverage" questions. See Allen v. State Board of Elections, supra, 393 U.S., at 558-559, 89 S.Ct. at 827-828.
10
The District Court in this case twice exceeded the permissible scope of its § 5 inquiry. In the order implementing its summary judgment for the United States, the court apparently decided that the 1970 redistricting plan did not comply with the Fifteenth Amendment.2 In its later Findings of Fact and Conclusions of Law approving a plan submitted to the court by Warren County, the court "proceeded on the premise that if . . . Fifteenth Amendment protections had not been accorded by any plan proposed, the court could have instituted its own plan," and then determined that the County plan "will not lessen the opportunity of black citizens of Warren County to participate in the political process and elect officials of their choice." In both instances the court below erred in deciding the questions of constitutional law;3 it should have determined only whether Warren County could be enjoined from holding elections under a new redistricting plan because such plan had not been cleared under § 5. Accordingly, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
11
So ordered.
1
Section 5 requires, in relevant part, that whenever a State or political subdivision covered by the Act seeks to administer "any voting qualifica-
tion or prerequisite to voting, or standard, practice or procedure with respect to voting different from that in force or effect on November 1, 1964," it may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that "such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." Until the District of Columbia court enters a declaratory judgment to that effect, no person may be denied the right to vote for failure to comply with the new practice or procedure. As an alternative to the requirement of a declaratory judgment, § 5, permits the State or political subdivision to enforce a new voting procedure if the procedure has been first submitted to the Attorney General of the United States and the Attorney General has not, within 60 days, interposed an objection to the proposed change. All actions under § 5 are required to be heard by a three-judge court. Voting Rights Act of 1965, § 5, 79 Stat. 439, 42 U.S.C. § 1973c.
There is no dispute in this case that Warren County is a political subdivision covered by the Act, that realignment of election districts is a voting practice or procedure, and that Warren County has not instituted a declaratory judgment action in the District Court for the District of Columbia.
2
The court's order enjoined the holding of the 1975 elections because they could not be held without abridging Fourteenth and Fifteenth Amendment rights. The court did not elaborate, but it appears to have held that Fourteenth Amendment, one-person-one-vote rights would be abridged if the election were conducted under the old districting plan and the Fifteenth Amendment rights of black voters would be violated if the 1970 redistricting plan were used.
3
Although the record is not clear, the source of the confusion concerning the power of the District Court in this case seems to have arisen from the fact that the Attorney General did not seek merely to enjoin implementation of the 1970 redistricting plan, but also asked the court to enjoin any election until the County had been redistricted in a manner that both met the requirements of the Voting Rights Act and eliminated the malapportionment of the old districts. The malapportionment of the old plan could not, however, be made the subject of a Government suit brought under § 5. The section is addressed only to voting procedures that were not in effect on November 1, 1964. Beer v. United States, 425 U.S. 130, 138-139, 96 S.Ct. 1357, 1362-1363, 47 L.Ed.2d 629 (1976). The allegedly malapportioned districts had existed long before 1964 and were, therefore not properly before the court in the § 5 action.
| 12
|
429 U.S. 569
97 S.Ct. 850
51 L.Ed.2d 48
DON E. WILLIAMS COMPANY, Petitioner,v.COMMISSIONER OF INTERNAL REVENUE.
No. 75-1312.
Argued Dec. 8, 1976.
Decided Feb. 22, 1977.
Syllabus
Petitioner accrual-basis corporate taxpayer, by delivering fully secured promissory demand notes to the trustees of its qualified employees' profit-sharing trust, held not entitled to income tax deductions therefor under § 404(a) of the Internal Revenue Code of 1954, which allows a deduction for contributions "paid" by an employer to a profit-sharing plan in the taxable year "when paid," and further allows the deduction if the contribution was a "payment . . . made" within a specified grace period following the end of the employer's taxable year. Pp. 574-583.
(a) The statutory terms "paid" and "payment," coupled with the grace period and the legislative history's reference to "paid" and "actually paid," demonstrate that, regardless of the method of accounting, all taxpayers must pay out cash or its equivalent by the end of the grace period in order to qualify for the § 404(a) deduction. This accords with the apparent statutory policy that the profit-sharing plan receive full advantage of any contribution that entitles the employer to a tax benefit. Here the petitioner's issuance and delivery of the promissory notes did not make the accrued contributions ones that were "paid" within the meaning of § 404(a). Pp. 574-579.
(b) Though the notes had value and would qualify as income to a seller-recipient, the notes, for the maker, even though fully secured, are still only a promise to pay and do not in themselves constitute an outlay of cash or other property. P. 579.
(c) The transactions in question cannot be treated as payments of cash to the trustees followed by loans, evidenced by the notes in return, since "a transaction is to be given its tax effect in accord with what actually occurred and not in accord with what might have occurred," Commissioner v. National Alfalfa Dehydrating, 417 U.S. 134, 148, 94 S.Ct. 2129, 2136-2137, 40 L.Ed.2d 717. Pp. 579-580.
(d) The word "paid" in § 404(a) cannot be assumed to have the same meaning it has in § 267(a) of the Code, which disallows deductions by an accrual-basis taxpayer for certain items that are accrued but not yet paid to related cash-basis payees. The situation under s 267(a) whereby the term "paid" has been used to insure that transactions between related entities received consistent tax treatment, has no counterpart under § 404(a), for the qualified profit-sharing plan is exempt from tax. Pp. 580-582.
(e) A promissory note cannot properly be equated with a check, since a note, even when payable on demand and fully secured, is still only a promise to pay, whereas a check is a direction to the bank for immediate payment, is a medium of exchange, and is treated for federal tax purposes as a conditional payment of cash. P. 582-583.
527 F.2d 649, affirmed.
Marvin L. Schrager, East Moline, Ill., for petitioner.
Keith A. Jones, Washington, D. C., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The issue in this federal income tax case is whether an accrual-basis corporate taxpayer, by delivering its fully secured promissory demand note to the trustees of its qualified employees' profit-sharing trust, is entitled to a deduction therefor under § 404(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 404(a).1
2
* The pertinent facts are stipulated. Petitioner, Don E. Williams Company (taxpayer), is an Illinois corporation with its principal office at Moline in that State. It serves as a manufacturers' representative and wholesaler for factory tools and supplies. It keeps its books and files its federal income tax returns on the accrual method of accounting and on the basis of the fiscal year ended April 30. Don E. Williams, Jr., president of the taxpayer, owns 87.08% of its outstanding capital stock; Joseph W. Phillips, Jr., vice president, owns 4.17% thereof; and Alice R. Williams, secretary-treasurer, owns 4.58%.
3
In November 1963, the taxpayer's directors adopted the Don E. Williams Company Profit Sharing Plan and Trust. The trustees are the three officers of the taxpayer and the First National Bank of Moline. The trust was "qualified" under § 401(a) of the Code and thus, under § 501(a), is exempt from federal income tax.
4
Near the end of each of its fiscal years 1967, 1968, and 1969, the taxpayer's directors authorized a contribution of approximately $30,000 to the trust. This amount was accrued as an expense and liability on the taxpayer's books at the close of the year. In May, the taxpayer delivered to the trustees its interest-bearing promissory demand note for the amount of the liability so accrued. The 1967 and 1968 notes bore 6% interest and the 1969 note bore 8% interest. Each note was guaranteed by the three officer-trustees individually and, in addition, was secured by collateral consisting of Mr. Williams' stock of the taxpayer and the interests of Mr. Williams and Mr. Phillips under the plan. The value of the collateral plus the net worth of Alice R. Williams, a guarantor, greatly exceeded the face amount of each note.
5
Within a year following the issuance of each note the taxpayer delivered to the trustees its check for the principal amount of the note plus interest. Each check was duly honored.
6
In its federal income tax return filed for each of the fiscal years 1967, 1968, and 1969 the taxpayer claimed a deduction under § 404(a) for the liability accrued to the trustees. On audit, the Commissioner of Internal Revenue, respondent here, ruled that the accruals and the deliveries of the notes to the trustees were not contributions that were "paid," within the meaning of § 404(a). Accordingly, he disallowed the claimed accrual deductions and, instead, allowed deductions only for the checks2 for the respective fiscal years in which they were delivered. These adjustments resulted in deficiencies of $15,162.87, $1,360.64, and $530.42, respectively, in the taxpayer's income taxes for the three years.
7
On petition for redetermination, the United States Tax Court, in a reviewed opinion with three dissents, upheld the Commissioner. 62 T.C. 166 (1974). In so doing, it adhered to its consistent rulings since 19493 to the effect that an accrual-basis employer's contribution to its qualified employees' profit-sharing plan in the form of the employer's promissory note was not something "paid," and therefore deductible, under § 404(a) of the 1954 Code or under the predecessor § 23(p) of the Internal Revenue Code of 1939. With the taxpayer's case being subject to an appeal to the United States Court of Appeals for the Seventh Circuit, which had not yet ruled on the issue, the Tax Court declined to follow decisions of the Third, Ninth, and Tenth Circuits that had disagreed with the Tax Court in earlier cases.4 62 T.C., at 168.
8
On appeal, the Seventh Circuit also declined to follow its sister Circuits, and affirmed. 527 F.2d 649 (1975). We granted certiorari to resolve the conflict. 426 U.S. 919, 96 S.Ct. 2622, 49 L.Ed.2d 372 (1976).
II
9
A. The statute. Under § 446 of the Code, 26 U.S.C. § 446, taxable income is computed under the accounting method regularly utilized by the taxpayer in keeping its books. Subject to that requirement, "a taxpayer may compute taxable income" under the cash receipts and disbursements method or, among others, under "an accrual method." As a consequence, the words "paid or accrued" or "paid or incurred" appear in many of the Code's deduction provisions.5 The presence of these phrases reveals Congress' general intent to give full meaning to the accrual system and to allow the accrual-basis taxpayer to deduct appropriate items that accrue, or are incurred, but are unpaid during the taxable year.
10
Section 404(a), however, quoted in n. 1, supra, stands in obvious contrast. It provides that "(i)f contributions are paid by an employer to . . . a . . . profit-sharing . . . plan," the contributions, subject to a specified limitation in amount, shall be deductible "(i)n the taxable year when paid " (emphasis supplied). The usual alternative words, "or accrued" or "or incurred," are missing, and their absence indicates congressional intent to permit deductions for profit-sharing plan contributions only to the extent they are actually paid and not merely accrued or incurred during the year. Congress, however, by way of addendum, provided a grace period for the accrual-basis taxpayer. Section 404(a)(6) allowed a deduction for the taxable year with respect to a contribution on account of that year if it was a "payment . . . made" within the time prescribed for filing that year's return.6 Under § 6072(b) of the Code, this period, for petitioner-taxpayer, was two and one-half months after April 30, the close of its fiscal year, or July 15.
11
B. The legislative history. This history, as is to be expected, is consistent with the theme of the statute's language. Section 404 is virtually identical with § 23(p) of the 1939 Code, as amended by § 162(b) of the Revenue Act of 1942, 56 Stat. 863. Committee reports at that time speak of an accrual-basis taxpayer's deferral of paying compensation and state that, if this was done "under an arrangement having the effect of a . . . profit-sharing . . . plan . . . deferring the receipt of compensation, he will not be allowed a deduction until the year in which the compensation is paid " (emphasis supplied). H.R.Rep. No. 2333, 77th Cong., 2d Sess., 106 (1942); S.Rep. No. 1631, 77th Cong., 2d Sess., 141 (1942).7 This, however, would have created a computational problem for the accrual-basis taxpayer who wished to make the maximum contribution possible under the percentage limitations of the statute, see § 404(a)(3)(A), n. 1, supra, but who would not be able to determine that figure until after the close of the taxable year. See Hearings before the Senate Committee on Finance on the Revenue Act of 1942, 77th Cong., 2d Sess., 465 (1942). Accordingly, Congress provided the grace period, originally 60 days under § 23(p)(1)(E) of the 1939 Code, as amended, 56 Stat. 865, for the accrual basis taxpayer.
12
Six years later the House Committee on Ways and Means recommended an extension of the grace time and referred to the then-existing 60-day period for the deduction of "contributions actually paid " (emphasis supplied). H.R.Rep. No. 2087, 80th Cong., 2d Sess., 13 (1948). The Senate did not then go along. But in 1954 the grace period was lengthened to coincide with the period for filing the return, § 404(a)(6) of the 1954 Code, and at that time a similar reference, "actually makes payment," was repeated in the legislative history. S.Rep. No. 1622, 83d Cong., 2d Sess., 55 (1954); U.S.Code Cong. & Admin.News 1954, p. 4629. See, id., at 292, and H.R.Rep. No. 1337, 83d Cong., 2d Sess., A151 (1954); U.S.Code Cong. & Admin.News 1954, p. 4025.
13
The applicable Treasury Regulations since 1942 consistently have stressed payment by the accrual-basis taxpayer. See Reg. 111, § 29.23(p)-1 (1943); Reg. 118, § 39.23(p)-1(d) (1953); Reg. § 1.404(a)-1(c), 26 CFR § 1.404(a)-1(c) (1975).8 With the statute re-enacted in the 1954 Code, this administrative construction may be said to have received congressional approval. See Lykes v. United States, 343 U.S. 118, 127, 72 S.Ct. 585, 590, 96 L.Ed. 791 (1952).
14
We thus have, in the life and development of the statute, an unbroken pattern of emphasis on payment for the accrual-basis taxpayer. Indeed, the taxpayer here concedes that more than mere accrual is necessary for the accrual-basis taxpayer to be entitled to the deduction. Tr. of Oral Arg. 17. The taxpayer would find that requirement satisfied by the issuance and delivery of its promissory note. To that aspect of the case we now turn.
III
15
In the light of the language of the statute, its legislative history, and the taxpayer's just-mentioned concession, the controversy before us obviously comes down to the question whether the taxpayer's issuance and delivery of its promissory note to the trustees within the grace period, unaccompanied, however, by discharge of the note within that period, made the accrued contribution one that was "paid" within the meaning of § 404(a). The obligation to make the contribution for the taxable year existed, and the liability was even formally recognized by the taxpayer by the issuance and delivery of its note of acknowledged value. But was all this a contribution "paid" to the profit-sharing plan?
16
Two decisions of this Court, although they concern cash-basis taxpayers, are of helpful significance. The first is Eckert v. Burnet, 283 U.S. 140, 51 S.Ct. 373, 75 L.Ed. 911 (1931). There a taxpayer had endorsed notes issued by a corporation which later became insolvent. The taxpayer and his partner took up the notes with the creditor by replacing them with their own joint note. The Court unanimously held that this did not entitle the cash-basis taxpayer to a bad-debt deduction for, as the Board of Tax Appeals observed, he had " 'merely exchanged his note under which he was primarily liable for the corporation's notes under which he was secondarily liable, without any outlay of cash or property having a cash value.' " Id., at 141, 51 S.Ct., at 374. The second decision is Helvering v. Price, 309 U.S. 409, 60 S.Ct. 673, 84 L.Ed. 836 (1940). There the taxpayer argued that his giving a secured note to a bank in response to a guarantee gave rise to a deduction. The Court observed that the note "was not the equivalent of cash to entitle the taxpayer to the deduction," and concluded that the fact the note was secured made no difference in the result. "(T)he collateral was not payment. It was given to secure respondent's promise to pay" and "did not transform the promise into the payment required to constitute a deductible loss in the taxable year." Id., at 413-414, 60 S.Ct., at 675.9
17
The reasoning is apparent: the note may never be paid, and if it is not paid, "the taxpayer has parted with nothing more than his promise to pay." Hart v. Commissioner, 54 F.2d 848, 852 (CA1 1932).
18
If, as was suggested, the language of § 404(a) places all taxpayers on a cash basis with respect to payments to a qualified profit-sharing trust, the principle of Eckert and of Price clearly is controlling here. The petitioner argues, of course, that that principle is not applicable to the accrual-basis taxpayer. We are not persuaded. The statutory terms "paid" and "payment," coupled with the grace period and the legislative history's reference to "paid" and "actually paid," demonstrate that, regardless of the method of accounting, all taxpayers must pay out cash or its equivalent by the end of the grace period in order to qualify for the § 404(a) deduction.
19
This accords, also, with the apparent policy behind the statutory provision, namely, that an objective outlay-of-assets test would insure the integrity of the employees' plan10 and insure the full advantage of any contribution which entitles the employer to a tax benefit.
20
Other arguments advanced by the taxpayer are also unconvincing:
21
1. The taxpayer argues that because its notes are acknowledged to have had value, it is entitled to a deduction equal to that value. It is suggested that such a note would qualify as income to a seller-recipient. Whatever the situation might be with respect to the recipient, the note, for the maker, even though fully secured, is still only his promise to pay. It does not in itself constitute an outlay of cash or other property. A similar argument was made in Helvering v. Price, supra, and was not availing for the taxpayer there. See Brief for Respondent, O.T. 1939, No. 559, pp. 16-17.
22
2. The taxpayer suggests that the transaction equates with a payment of cash to the trustees followed by a loan, evidenced by the note in return, in the amount of the cash advanced. But
23
"a transaction is to be given its tax effect in accord with what actually occurred and not in accord with what might have occurred.
24
". . . 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 . . . and may not enjoy the benefit of some other route he might have chosen to follow but did not." Commissioner v. National Alfalfa Dehydrating, 417 U.S. 134, 148-149, 94 S.Ct. 2129, 2137, 40 L.Ed.2d 717 (1974).
25
See Central Tablet Mfg. Co. v. United States, 417 U.S. 673, 690, 94 S.Ct. 2516, 2526, 41 L.Ed.2d 398 (1974).11 What took place here is clear, and income tax consequences follow accordingly. We do not indulge in speculating how the transaction might have been recast with a different tax result.
26
3. Taxpayer heavily relies on the fact that three Courts of Appeals the only courts at that level to pass upon the issue until the present case came to the Seventh Circuit, see n.4, supra have resolved the issue adversely to the Commissioner. We cannot ignore those decisions or lightly pass them by. Indeed, petitioner taxpayer has a stronger argument than the taxpayers in those cases because they concerned note transactions of somewhat lesser integrity, in the sense that the notes either bore a lower interest rate or no interest at all, or were less adequately secured. After careful review of those cases, however, we conclude that their analytical structure rests on two errors:
27
(a) The three Courts of Appeals, in considering § 404(a) assumed, mistakenly we feel, that the word "paid" in the statute has the same meaning it possesses in § 267(a).12 The latter section disallows deductions by an accrual-basis taxpayer for certain items that are accrued but not yet paid to related cash-basis payees. The analogy the Courts of Appeals drew between § 404(a) and § 267(a) derives from two earlier cases, namely, Anthony P. Miller, Inc. v. Commissioner, 164 F.2d 268 (CA3 1947), cert. denied, 333 U.S. 861, 68 S.Ct. 741, 92 L.Ed. 1140 (1948), and Musselman Hub-Brake Co. v. Commissioner, 139 F.2d 65 (CA6 1943), where it was ruled that an accrual-basis corporate taxpayer's delivery of a demand note to one of its officers for salary or to its controlling shareholder for royalties and interest effected a payment of those items under s 24(c) of the 1939 Code (the predecessor of § 267(a) of the 1954 Code).13 But this interpretation of the term "paid" in § 267(a) necessarily resulted from the desirability of affording simultaneously consistent treatment to the deduction and to the income inclusion. The statute's purpose was to prevent the tax avoidance that would result if an accrual-basis corporation could claim a deduction for an accrued item its related cash-basis payee would not include in income until it was paid, if ever. See H.R.Rep. No. 1546, 75th Cong., 1st Sess., 29 (1937); S.Rep. No. 1242, 75th Cong., 1st Sess., 31 (1937). Because the recipient of the note was required to include its value in income at the time of receipt, disallowance of the deduction to the maker corporation sympathetically was deemed not to serve the underlying policy of § 24(c) of the 1939 Code. Musselman, 139 F.2d at 68; Logan Engineering Co. v. Commissioner, 12 T.C. 860, 868 (1949). The term "paid" in the statute was thus used merely, and only insofar as, to insure that transactions between related entities received consistent tax treatment. This situation has no counterpart under § 404(a), for the qualified plan is exempt from tax. A policy consideration that might call for equivalence on both sides of the income tax ledger plainly is not present. And one is not brought into being by the fact that the trustees must disclose the note in the information report required to be filed by § 6047(a) of the Code.
28
(b) The three Courts of Appeals seemed to equate a promissory note with a check. The line between the two may be thin at times, but it is distinct. The promissory note, even when payable on demand and fully secured, is still, as its name implies, only a promise to pay, and does not represent the paying out or reduction of assets. A check, on the other hand, is a direction to the bank for immediate payment, is a medium of exchange, and has come to be treated for federal tax purposes as a conditional payment of cash. Estate of Spiegel v. Commissioner, 12 T.C. 524 (1949); Rev.Rul. 54-465, 1954-2 Cum.Bull. 93. The factual difference is illustrated and revealed by taxpayer's own payment of each promissory note with a check within a year after issuance.
29
We therefore find ourselves in disagreement with the result reached by the Third, Ninth, and Tenth Circuits in their respective cases hereinabove cited. We agree, instead, with the Tax Court in its uniform line of decisions and with the Seventh Circuit in the present case. The judgment of the Court of Appeals is affirmed.
30
It is so ordered.
31
Mr. Justice STEVENS, concurring.
32
Mr. Justice BLACKMUN'S opinion for the Court, which I join, construes the word "paid" to require the delivery of cash or its equivalent. In my judgment, that construction best serves the statutory purpose of protecting the integrity of pension plans because the employer and the pension trust are often controlled by the same interests.
33
Mr. Justice STEWART, with whom Mr. Justice POWELL joins, dissenting.
34
The Court says that § 404(a) "places all taxpayers on a cash basis with respect to payments to a qualified profit-sharing trust." Ante, at 578. This assumption is the keystone of today's decision, for only by treating the petitioner as a cash-method taxpayer can the Court apply the rule of Eckert v. Burnet, 283 U.S. 140, 51 S.Ct. 373, 75 L.Ed. 911 and Helvering v. Price, 309 U.S. 409, 60 S.Ct. 673, 84 L.Ed. 836 to require the petitioner to have paid out "cash or its equivalent" in order to be allowed a deduction. But the assumption is just that an assumption that is not and cannot be supported.
35
It is true, as the Court observes, ante, at 574-577, that the statute, the applicable committee reports, and the underlying Treasury Regulations all emphasize that the employer's contribution must be "paid";1 mere accrual of the obligation is therefore insufficient to obtain the deduction. The question in this case, however, is whether the word "paid" requires an accrual-basis taxpayer to part with "cash or its equivalent" or whether the obligation may be "paid" by the delivery of a negotiable, interest-bearing, fully secured demand note. When the Court responds by stating baldly that "the language of § 404(a) places all taxpayers on a cash basis," it begs rather than answers the question.2
36
This question-begging assumption is at odds with the long-accepted principle that cash- and accrual-basis taxpayers should not be lumped together when applying statutes such as this one. The case of Musselman Hub-Brake Co. v. Commissioner, 139 F.2d 65 (CA6), expressed this principle more than 30 years ago. There an accrual-method corporation sought a business-expense deduction for patent royalties and interest paid to its controlling shareholder in the form of demand promissory notes. The applicable statute, as in the present case, required business expenses to be "paid" in the taxpayer's taxable year or within two and one-half months thereafter. Internal Revenue Code of 1939, § 24(c). The court held that the deduction was permissible, noting that Eckert and Price "are not in point here" because in each case "(t)he method of accounting followed by the taxpayer . . . was the premise of . . . decision." 139 F.2d, at 69. The court explicitly rejected the contention that the requirement of actual payment "put an accrual taxpayer on a cash basis," and held that such a restrictive interpretation of the word "paid" was unnecessary to achieve the congressional purpose.
37
The Musselman decision, and the reasoning that underlies it, have been approved by the Courts of Appeals in case after case, in connection with both § 404(a) and other analogous provisions of the Internal Revenue Code. See, e. g., Fetzer Refrigerator Co. v. United States, 437 F.2d 577 (CA6); Wasatch Chemical Co. v. Commissioner, 313 F.2d 843 (CA10); Time Oil Co. v. Commissioner, 258 F.2d 237 (CA9); Sachs v. Commissioner, 208 F.2d 313 (CA3); Commissioner v. Mundet Cork Corp., 173 F.2d 757 (CA2); Anthony P. Miller, Inc. v. Commissioner, 164 F.2d 268 (CA3); Celina Mfg. Co. v. Commissioner, 142 F.2d 449 (CA6); accord, Advance Constr. Co. v. United States, 356 F.Supp. 1267 (ND Ill.). See also Hart v. Commissioner, 54 F.2d 848, 831-852 (CA1). The Court of Appeals for the Sixth Circuit considered the doctrine most recently in Patmon, Young & Kirk v. Commissioner, 536 F.2d 142 (1976), a case decided after the decision of the Seventh Circuit that the Court affirms today. The court in Patmon relying on Eckert and Price, denied a § 404(a) deduction to a cash-basis taxpayer that had contributed a guaranteed demand note to its profit-sharing trust. The court was careful, however, to distinguish accrual-method taxpayers, noting that "the word 'paid' (must) be defined in the context and in light of the purpose of the particular statute in which it is used." 536 F.2d at 144.
38
In short, until the Court of Appeals for the Seventh Circuit held as it did in the present case, no federal appellate court had ever held that use of the word "paid" in a statute such as § 404(a) requires that cash- and accrual-basis taxpayers be treated identically.3 This unanimity was soundly supported by a long-established principle of tax law that the construction of words in a tax statute should be in "harmony with the statutory scheme and purpose." Helvering v. Hutchings, 312 U.S. 393, 398, 61 S.Ct. 653, 654, 85 L.Ed. 909. Under this principle, there is no reason to suppose that the word "paid" means the same thing with respect to taxpayers who use different accounting methods, and every reason to suppose it does not.
39
The Eckert and Price cases, requiring the payment of "cash or its equivalent," were explicitly premised on the taxpayers' use of the cash method. See Eckert, 283 U.S., at 141, 51 S.Ct., at 374 ("For the purpose of a return upon a cash basis, there was no loss in 1925"); Price, 309 U.S., at 413, 60 S.Ct., at 675 ("As the return was on the cash basis, there could be no deduction in the year 1932 . . .").4 Indeed, their focus explains their result. Because the returns at issue were filed on a cash basis, the thrust of the inquiry was upon determining what the taxpayers had surrendered. They had given up nothing of immediate cash value to them, and so it would have been inconsistent with fundamental principles of cash-method accounting to have allowed them deductions.
40
In this case, however, the taxpayer seeking the deductions keeps its books on the accrual basis; no accounting principles require that the inquiry be focused on the value to it of the property it surrenders or that its payments be made in cash or the equivalent. In such a situation I think "the word 'paid' (must) be defined in the context and in light of the purpose of the particular statute in which it is used." Patmon, Young & Kirk v. Commissioner, supra, at 144. That is, the normal rules governing accrual-method accounting should apply except as necessary to achieve the purpose of § 404(a). Since that purpose is to protect the employees' trust fund and to ensure that the fund receives the "full advantage" of the employer's deductible contribution, ante, at 579, the focus is properly on the value to the trust of what it has received. Here it received tangible, interest-bearing, fully secured demand notes, upon which the trust concededly could have obtained full face value at any local bank. The notes would have been "income" to any cash-basis taxpayer, and the trust was required to report them as such. Ante, at 582. Indeed, the Commissioner concedes that the petitioner could have obtained its deductions had it tendered to the trust identical notes of a different company, for such a transaction would have been treated as a deductible transfer of property. See Colorado Nat. Bank of Denver v. Commissioner, 30 T.C. 933.
41
Plainly, then, neither the purpose of the statute nor any principles of cash-basis or accrual-basis accounting require or even suggest a construction of the word "paid" in § 404(a) to deny this accrual-method taxpayer a deduction because it did not part with "cash or its equivalent" during the statutory period. As the Court says, the term "paid" in § 404(a) was used to "insure the integrity of the employees' plan and insure the full advantage of any contribution which entitles the employer to a tax benefit." Ante, p. 579. That purpose was wholly served by the delivery of negotiable, interest bearing, fully secured demand notes.5
42
I would reverse the judgment of the Court of Appeals.
1
Section 404(a), as amended by § 24 of the Technical Amendments Act of 1958, 72 Stat. 1623, reads in pertinent part:
"(a) General rule.
"If contributions are paid by an employer to or under a stock bonus, pension, profit-sharing, or annuity plan, . . . such contributions . . . shall not be deductible under section 162 (relating to trade or business expenses) or section 212 (relating to expenses for the production of income); but, if they satisfy the conditions of either of such sections, they shall be deductible under this section, subject, however, to the following limitations as to the amounts deductible in any year:
"(3) Stock bonus and profit-sharing trusts.
"(A) Limits on deductible contributions.
"In the taxable year when paid, if the contributions are paid into a . . . profit-sharing trust, and if such taxable year ends within or with a taxable year of the trust with respect to which the trust is exempt under section 501(a), in an amount not in excess of 15 percent of the compensation otherwise paid or accrued during the taxable year to all employees under the . . . profit-sharing plan. . . ."
2
Respondent acknowledges that a solvent taxpayer's issuance and delivery of a check is a contribution that is "paid," within the language of § 404(a). Tr. of Oral Arg. 28-31. See Dick Bros. v. Commissioner, 205 F.2d 64 (CA3 1953).
3
Logan Engineering Co. v. Commissioner, 12 T.C. 860 (Kern, J., reviewed by the court with no dissents), appeal dismissed (CA7 1949); Slaymaker Lock Co. v. Commissioner, 18 T.C. 1001 (1952) (Bruce, J.), rev'd sub nom. Sachs v. Commissioner, 208 F.2d 313 (CA3 1953); Time Oil Co. v. Commissioner, 26 T.C. 1061 (1956) (Withey, J.), remanded, 258 F.2d 237 (CA9 1958), supplemental opinion, 294 F.2d 667 (1961); Wasatch Chemical Co. v. Commissioner, 37 T.C. 817 (1962) (Fay, J., reviewed by the court with no dissents), remanded, 313 F.2d 843 (CA10 1963). Memorandum decisions to the same effect are Freer Motor Transfer Co. v. Commissioner, 8 TCM 507 (1949), P 49,124 P-H Memo T.C. (Kern, J.); Sachs v. Commissioner, 11 TCM 882 (1952), P 52,256 P-H Memo TC (LeMire, J.), remanded, 208 F.2d 313 (CA3 1953); Lancer Clothing Corp. v. Commissioner, 34 TCM 776 (1975), P 75,180 P-H Memo TC (Scott, J.), on appeal to the Second Circuit, No. 76-4012; Coastal Electric Corp. v. Commissioner, 34 TCM 1007 (1975), P 75,231 P-H Memo TC (Goffe, J.), on appeal to the Fourth Circuit, No. 75-2184. See Rev.Rul. 71-95, 1971-1 Cum.Bull. 130; Rev.Rul. 55-608, 1955-2 Cum.Bull. 546, 548. See also Patmon, Young & Kirk v. Commissioner, 536 F.2d 142 (CA6 1976), concerning a cash basis taxpayer.
4
Sachs v. Commissioner, 208 F.2d 313 (CA3 1953) (negotiable interest-bearing demand notes); Time Oil Co. v. Commissioner, 258 F.2d 237, 240 (CA9 1958) (non-interest-bearing demand notes, said to present a "close" question); Wasatch Chemical Co. v. Commissioner, 313 F.2d 843 (CA10 1963) (unsecured interest-bearing five-year promissory notes). Accord, Advance Constr. Co. v. United States, 356 F.Supp. 1267 (NDIll.1972) (secured interest-bearing term promissory note).
The persistence of the Government in pursuing its position, on an issue of tax law has been noted before. United States v. Foster Lumber Co., 429 U.S., at 54-55, 97 S.Ct., at 216 (dissenting opinion). This time, however, the Government's position has been consistently accepted for more than 25 years by the Tax Court. It thus has not encountered uniform judicial rejection over a substantial period, as it had on the Foster Lumber issue.
5
See, e. g., §§ 162(a), 163(a), 164(a), 174(a)(1), 175(a), 177(a), 180(a), 182(a), 212, 216(a), and 217(a). See also § 7701(a)(25).
6
Section 404(a)(6), as it read prior to a 1974 amendment, provided:
"(6) Taxpayers on accrual basis.
"For purposes of paragraphs (1), (2), and (3), a taxpayer on the accrual basis shall be deemed to have made a payment on the last day of the year of accrual if the payment is on account of such taxable year and is made not later than the time prescribed by law for filing the return for such taxable year (including extension thereof)."
Section 1013(c)(2) of the Employee Retirement Income Security Act of 1974, 88 Stat. 923, amended this section to afford the same grace period to a cash-basis taxpayer.
7
At least one witness at the time aptly described the law as having been "drafted in such a way that all corporations are put on a cash basis on the payment to trusts." Statement of Richard D. Sturtevant in Hearings before the Senate Committee on Finance on the Revenue Act of 1942, 77th Cong., 2d Sess., 465 (1942).
8
Reg. § 1.404(a)-1 (c) reads:
"Deductions under section 404(a) are generally allowable only for the year in which the contribution or compensation is paid, regardless of the fact that the taxpayer may make his returns on the accrual method of accounting. Exceptions are made in the case of . . . and, as provided by section 404(a)(6), in the case of payments made by a taxpayer on the accrual method of accounting not later than the time prescribed by law for filing the return for the taxable year of accrual (including extensions thereof). This latter provision is intended to permit a taxpayer on the accrual method to deduct such accrued contribution or compensation in the year of accrual, provided payment is actually made not later than the time prescribed by law for filing the return for the taxable year of accrual (including extensions thereof) . . . ."
9
Other courts have applied Eckert and Price to situations other than a claimed bad-debt deduction. Cleaver v. Commissioner, 158 F.2d 342 (CA7 1946), cert. denied, 330 U.S. 849, 67 S.Ct. 1093, 91 L.Ed. 1293 (1947) (interest); Jenkins v. Bitgood, 101 F.2d 17 (CA2), cert. denied, 307 U.S. 636, 59 S.Ct. 1033, 83 L.Ed. 1518 (1939) (loss); Baltimore Dairy Lunch, Inc. v. United States, 231 F.2d 870, 875 (CA8 1956) (loss); Guren v. Commissioner, 66 T.C. 118 (1976)(charitable contribution); Petty v. Commissioner, 40 T.C. 521, 524 (1963) (Atkins, J., for seven judges, concurring) (charitable contribution).
10
A similar policy applies to deductions for charitable contributions under § 170(a) of the Code. These deductions, too, are limited to those the "payment of which is made within the taxable year," even though the particular taxpayer is on the accrual basis. See H.R.Rep.No.1860, 75th Cong., 3d Sess., 19 (1938), referring to §§ 23(o ) and (q) of the Revenue Act of 1938, 52 Stat. 463, 464.
11
By § 2003(a) of the Employee Retirement Income Security Act of 1974, 88 Stat. 971, § 4975 was added to the 1954 Code. It makes an employer's issuance of its promissory note to a qualified profit-sharing plan a "prohibited transaction" subject to penalty. See §§ 4975(a), (b), and (c)(1)(B). See also H.R.Conf.Rep. No. 93-1280, p. 308 (1974); U.S.Code Cong. & Admin.News 1974, p. 4639. By this penalty imposition, Congress has reaffirmed the actual-payment requirement of § 404(a), and strengthened its enforceability.
12
Section 267 relates to items that would be deductible under §§ 162 or 212 and reads:
"(a) Deductions disallowed.
"No deduction shall be allowed
"(2) Unpaid expenses and interest.
"In respect of expenses, otherwise deductible under section 162 or 212, or of interest, otherwise deductible under section 163,
"(A) If within the period consisting of the taxable year of the taxpayer and 21/2 months after the close thereof (i) such expenses or interest are not paid, and (ii) the amount thereof is not includible in the gross income of the person to whom the payment is to be made; and
"(B) If, by reason of the method of accounting of the person to whom the payment is to be made, the amount thereof is not, unless paid, includible in the gross income of such person for the taxable year in which or with which the taxable year of the taxpayer ends; and
"(C) If, at the close of the taxable year of the taxpayer or at any time within 21/2 months thereafter, both the taxpayer and the person to whom the payment is to be made are persons specified within any one of the paragraphs of subsection (b).
"(b) Relationships.
"The persons referred to in subsection (a) are:
"(4) A grantor and a fiduciary of any trust . . .."
Section 404(a), on the other hand, concerns items specifically precluded as deductions under §§ 162 and 212.
13
Celina Mfg. Co. v. Commissioner, 142 F.2d 449 (CA6 1944); Commissioner v. Mundet Cork Corp., 173 F.2d 757 (CA2 1949); Akron Welding & Spring Co. v. Commissioner, 10 T.C. 715 (1948), are to the same effect. See Rev.Rul. 55-608, 1955-2 Cum.Bull. 546, 548.
1
In some instances the language is "actually paid," see, e. g., H.R.Rep. No. 2087, 80th Cong., 2d Sess., 13 (1948) (emphasis added), quoted ante, at 576, an embellishment that adds nothing of substance.
2
The only thread of support the Court finds is the statement of one witness before the Senate Committee on Finance that § 404(a) puts corporations "on a cash basis on the payment to trusts." Ante, at 575 n.7. We have recently noted the gossamer quality of that kind of legislative history. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 204 n.24, 96 S.Ct. 1375, 47 L.Ed.2d 668.
3
The invocation of the "re-enactment doctrine" in the Court's opinion today, ante, at 576-577, is therefore dramatically misplaced. The "administrative construction" of § 404(a) that supposedly received congressional approval when the 1954 Code was enacted was in fact nothing more than an administrative rehash of the statutory language that did not illumine its meaning. The regulation, Treas.Reg. § 1.404(a)-1(c), 26 CFR § 1.404(a)-1 (1975), refers simply to "actual payments" and restates the statute's requirements that the employer's contribution to the profit-sharing plan be "paid" before a deduction may be had. That the contribution must be "paid" whether the taxpayer files his returns on the accrual or cash method of accounting of course does not bear on the question whether the word "paid" means the same thing in both situations. The answer to this question in the appellate courts as of 1954 was clearly "no." Thus, the "re-enactment doctrine" not only fails to support the Court's decision in this case, but cuts strongly against it.
4
The Court correctly notes that Eckert and Price have been applied to claimed deductions for items other than bad debts, such as interest and business losses, ante, at 578 n.9, but all of the cases that the Court cites involved cash-basis taxpayers.
5
The Court's construction of § 404(a) is inconsistent with its analysis of § 267(a). The term "paid" in § 267(a), the Court acknowledges, was used "merely, and only insofar as" necessary to accomplish that section's purpose of ensuring consistent tax treatment of transactions between related entities. Ante, at 582. The implication is that normal accounting principles continue to apply to the full extent that their application is consistent with that purpose, and the cases the Court cites so hold. Anthony P. Miller, Inc. v. Commissioner, 164 F.2d 268 (CA3); Musselman Hub-Brake Co. v. Commissioner, 139 F.2d 65 (CA6). The Court never explains why the same logic should not inform the construction of § 404(a).
| 1112
|
429 U.S. 648
97 S.Ct. 835
51 L.Ed.2d 112
Francis X. DONOVANv.PENN SHIPPING CO., INC., et al.
No. 76-613.
Feb. 22, 1977.
PER CURIAM.
1
The petitioner, while employed by the respondents as a seaman on the §§ Penn Sailor, slipped on wet paint, injuring his right wrist and elbow. He sued the respondents under the Jones Act, 46 U.S.C. § 688, and obtained a $90,000 verdict at his jury trial. The respondents moved to set aside the verdict as excessive. Fed.Rules Civ.Proc. 50, 59. The District Court granted the motion, and ordered a new trial on damages unless the petitioner agreed to remit $25,000 of the $90,000 award.
2
After some time the petitioner submitted to the District Court a proposed order stating that he accepted "under protest" the reduced verdict of $65,000, but reserving nonetheless "his right to appeal therefrom." This language was adopted by the District Court in entering a judgment for the petitioner in the amount of $65,000.
3
The petitioner sought appellate review of the District Court's decision to order a conditional new trial. In so doing he asked the Court of Appeals for the Second Circuit to discard the settled rule that a plaintiff who has accepted a remittitur may not appeal to seek reinstatement of the original verdict. The Court of Appeals refused the petitioner's invitation, and dismissed the appeal. 536 F.2d 536.
4
(1) The Court of Appeals properly followed our precedents in holding that a plaintiff cannot "protest" a remittitur he has accepted in an attempt to open it to challenge on appeal. A line of decisions stretching back to 1889 has firmly established that a plaintiff cannot appeal the propriety of a remittitur order to which he has agreed. Kennon v. Gilmer, 131 U.S. 22, 29-30, 9 S.Ct. 696, 698-699, 33 L.Ed. 110 (1889); Lewis v. Wilson, 151 U.S. 551, 554-555, 14 S.Ct. 419, 420-421, 38 L.Ed. 267 (1894); Koenigsberger v. Richmond Silver Mining Co., 158 U.S. 41, 52, 15 S.Ct. 751, 756, 39 L.Ed. 889 (1895); Woodworth v. Chesbrough, 244 U.S. 79, 82, 37 S.Ct. 583, 584, 61 L.Ed. 1005 (1917).
5
There are decisions in the Federal Courts of Appeals that depart from these unbroken precedents. Those decisions held or intimated that a plaintiff who accepts a remittitur "under protest" may challenge on appeal the correctness of the remittitur order. See, e. g., Bonn v. Puerto Rico Int'l Airlines, Inc., 518 F.2d 89, 94 (C.A. 1 1975); United States v. 1160.96 Acres of Land, 432 F.2d 910 (C.A. 5 1970); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (C.A. 5 1970); Steinberg v. Indemnity Ins. Co. of North America, 364 F.2d 266 (C.A. 5 1966); Delta Engineering Corp. v. Scott, 322 F.2d 11, 15 (C.A. 5 1963). Other decisions have suggested that when entertaining cases pursuant to its diversity jurisdiction, a federal court should look to state practice to determine whether such an appeal is permitted. See Burnett v. Coleman Co., 507 F.2d 726 (C.A. 6 1974); Manning v. Altec, Inc., 488 F.2d 127 (C.A. 6 1973); Mooney v. Henderson Portion Pack Co., 334 F.2d 7 (C.A. 6 1964).
6
(2, 3) The proper role of the trial and appellate courts in the federal system in reviewing the size of jury verdicts is, however, a matter of federal law, see Hanna v. Plumer, 380 U.S. 460, 466-469, 85 S.Ct. 1136, 1141-1142, 14 L.Ed.2d 8 (1965); Byrd v. Blue Ridge Rural Electric Coop., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958), and that law has always prohibited appeals in the situation at bar. The Court of Appeals for the Second Circuit correctly adhered to the consistent rule established by this Court's decisions. In order to clarify whatever uncertainty might exist, we now reaffirm the longstanding rule that a plaintiff in federal court, whether prosecuting a state or federal cause of action, may not appeal from a remittitur order he has accepted.
7
The petition for a writ of certiorari is granted, and the judgment is affirmed.
8
So ordered.
9
THE CHIEF JUSTICE and Mr. Justice BLACKMUN would grant the petition for certiorari but would have the case argued and given plenary consideration rather than disposed of summarily.
| 89
|
429 U.S. 651
97 S.Ct. 828
51 L.Ed.2d 116
CONCERNED CITIZENS OF SOUTHERN OHIO, INC., et al.v.PINE CREEK CONSERVANCY DISTRICT et al.
No. 76-667.
Feb. 22, 1977.
PER CURIAM.
1
Chapter 6101 of the Ohio Revised Code establishes procedures for the organization and governance of conservancy districts, political subdivisions of the State invested with the power to carry out flood prevention and control measures. The statute provides for the creation of a conservancy court each time that a petition is duly filed to propose the creation of a new district. It is the conservancy court's responsibility first to evaluate the desirability of establishing the proposed district and then, if it decides to create the district, to assume the ultimate responsibility for administering the district. A conservancy district may include territory from one or more counties, and the conservancy court is composed of one judge from the court of common pleas in each county having territory within the conservancy district.
2
In 1966 the Pine Creek Conservancy District was established in accordance with the procedures set forth in chapter 6101. Appellants, who collectively are residents, property owners, and taxpayers in the Pine Creek District, brought the present action, seeking declaratory and injunctive relief and alleging, inter alia, that chapter 6101 is unconstitutional.
3
Appellants leveled three constitutional challenges against the statute in the District Court, and those claims have been renewed in the instant appeal. First, they argue that it violates due process for the conservancy courts to make the decision as to whether the conservancy districts that they will administer should be formed. Since the judges of the conservancy courts are entitled to special compensation for their work on those courts, appellants contend that they have a financial incentive to declare the proposed districts organized and that, therefore, persons objecting to the formation of a district are deprived of a hearing before an impartial judicial officer. See Ward v. Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). Second, appellants contend that the composition of the conservancy courts violates the one-man, one-vote principle of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), because the judges on those courts are selected without regard to the size of the population that they represent. Third, appellants argue that chapter 6101 permits the disenfranchisement of freeholders affected by the decision to create a conservancy district because the statute creates a presumption that a local political body, such as a township, represents the views of all persons within its jurisdiction whenever it supports a petition proposing the creation of a conservancy district.
4
A three-judge court rejected all of these claims on the single ground that they were foreclosed by Orr v. Allen, 248 U.S. 35, 39 S.Ct. 23, 63 L.Ed. 109 (1918), aff'g 245 F. 486 (W.D.Ohio 1917), a case in which we rejected a due process and equal protection attack on the statute challenged here. No. C-1-75-5 (W.D.Ohio, July 6, 1976).
5
None of the issues presented in this case was raised or passed upon in Orr. The appellant in Orr presented four issues to this Court, none of which had anything to do with the issues presented here. The appellant argued that the challenged statute denied him judicial review, that it authorized an impairment of existing contracts, that it improperly conferred legislative powers on the judiciary, and that it authorized a taking without compensation. Our three-page memorandum opinion in Orr did not purport to go beyond the issues raised by the appellant in that case. By no stretch of the imagination can our decision in Orr be thought to have silently dealt with issues which arose and were decided in later cases such as Ward, Tumey, and Reynolds v. Sims.
6
Because the court below gave no independent consideration to the issues raised by appellants and relied exclusively on Orr, although that case considered none of the issues now presented, it is apparent that the merits of appellants' claims have never been fully considered by any federal court. Without offering any view as to the relative merit of appellants' contentions, it is fair to say that they are not insubstantial. We therefore reverse the decision below and remand for a full consideration of the issues presented by appellants.
7
So ordered.
8
THE CHIEF JUSTICE would note probable jurisdiction and give plenary consideration to this appeal.
9
Mr. Justice REHNQUIST, with whom Mr. Justice POWELL and Mr. Justice STEVENS join, dissenting.
10
The action the Court takes today in this appeal is unexplained and very likely inexplicable. The three-judge District Court heard the case and rendered a final decision on the merits. It concluded that our affirmance in Orr v. Allen, 248 U.S. 35, 39 S.Ct. 23, 63 L.Ed. 109 (1918), and principles of stare decisis, compelled rejection of the constitutional challenges.
11
The opinion of the District Court sets forth every one of the challenges detailed by the Court today, and it is clear from its opinion that each of these claims was considered and rejected by it. On appeal here from such a decision in the absence of relevant intervening circumstances, see, e. g., Guste v. Jackson, 429 U.S. 399, 97 S.Ct. 657, 50 L.Ed.2d 638; Town of Lockport v. Citizens for Community Action, 423 U.S. 808, 96 S.Ct. 11, 46 L.Ed.2d 24 (1975); Weinberger v. Jobst, 419 U.S. 811, 95 S.Ct. 26, 42 L.Ed.2d 38 (1974), or procedural irregularities in the District Court's consideration of the case, e. g., Westby v. Doe, 420 U.S. 968, 95 S.Ct. 1385, 43 L.Ed.2d 648 (1975), this Court ordinarily either affirms, modifies, or reverses the judgment of the District Court. But in this case it has chosen none of these courses. Disagreeing with the District Court as to the scope of Orr v. Allen, it remands for "full consideration" of claims based on cases decided since Orr, in the teeth of the obvious fact that the District Court did consider these claims and rejected them.1 I agree with the Court that Orr does not afford an adequate basis for our affirming the District Court, although I am not nearly as certain that it was not an adequate basis for the District Court's decision. But even though the Members of this Court are agreed that Orr is not authority for rejecting appellants' claims based on Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), that amounts to nothing more than a disagreement with the reasoning of the District Court on the merits of the case. We should treat those claims here now, rather than "remanding" to the District Court as if we were editing a law student's first draft of a law review note.2
12
Believing as I do that we should reach and decide these claims, I shall state briefly my reasons for concluding that they are not sufficiently substantial to warrant setting the case for argument, and that the judgment of the District Court should be affirmed.
13
Appellants raise three constitutional objections. Two of them are connected in the sense that they do not relate to the operation of the Pine Creek Conservancy District, but, rather, are objections solely to the formation of that district.3 The first of these contentions is that persons objecting to the formation of a district are deprived of a hearing before an impartial judicial officer.4 The second is that chapter 6101 of the Ohio Revised Code permits disenfranchisement of freeholders to object to the formation of the district if the local political body supported the petition.
14
The district was formed in 1966, and these two objections were fully available to be raised at that time. This lawsuit was not filed until 1975. Absent some persuasive demonstration of a reason for such delay, I would view such a leisurely attack on the formation of a governmental body as barred by laches. "There must be conscience, good faith, and reasonable diligence, to call into action the powers of the court." McKnight v. Taylor, 1 How. 161, 168, 11 L.Ed. 86 (1843). The appellants seek not merely a reapportionment of the voting population of the district, but a judicial declaration that its formation was a nullity. Surely an attack on the formation of an organ of government is one of the situations where "both the nature of the claim and the situation of the parties was such as to call for diligence." Benedict v. City of New York, 250 U.S. 321, 328, 39 S.Ct. 476, 478, 63 L.Ed. 1005 (1919). There has been no such diligence here, and neither the pleadings nor the proof intimates any excuse for the delay.
15
These two challenges, I believe, fare no better on the merits. The first, again challenges the constitutionality, under Tumey v. Ohio, supra, of having court of common pleas judges decide whether the district should be formed, since, under § 141.07 of the Ohio Revised Code Ann. (Page 1975 Supp.), they will receive extra compensation if such district is formed. Neither Tumey nor Ward v. Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), has any direct bearing on the constitutionality of the Ohio procedure for forming a conservancy district. As Tumey and Ward made clear, those cases involved quintessentially judicial functions, see, e. g., Tumey, supra, 273 U.S., at 522, 47 S.Ct., at 440.5 Here, however, the determinations, although made by judges, are essentially legislative in nature. As Mr. Justice Holmes recognized, the determination of legislative facts does not necessarily implicate the same considerations as does the determination of adjudicative facts. Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908); Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915). Since I know of no constitutional objection to the formation of such districts through legislative or executive action without giving opposing citizens a chance to air their objections, see Houck v. Little River Dist., 239 U.S. 254, 262, 36 S.Ct. 58, 60, 60 L.Ed. 266 (1915) I see no constitutional objection to the procedures followed here. Those procedures simply insured an additional check on the process of formation, already petitioned for by the town governments, and the fact that they may not have been before an "impartial" judicial officer offends no constitutional right of appellants.
16
The second "formation" challenge, as presented by appellants, raises the following issue:
17
"Section 6101.05, Ohio Revised Code, submits the first decision in the creation of a conservancy district to the freeholders, who must petition for its creation. This is the only step in the entire procedure which calls for any participation in support or opposition, by the residents or landowners, to the creation of the district or the execution of its projects. . . . Section 6101.05, Ohio Revised Code, provides that the petition may be signed by the governing body of any public corporation in the proposed district. When such a public corporation signs the petition, all freeholders within it are conclusively presumed to favor creation of the district. In effect, all persons living in the three townships and one village which signed the petition who opposed the district were deprived of the right to oppose the district." Jurisdictional Statement 13-14.
18
This constitutional challenge is wholly insubstantial. I know of nothing and appellants suggest nothing, which would even arguably make the issue one that freeholders were constitutionally entitled to vote on. Thus, had the statute simply allowed the governing bodies of the respective townships to form such a district, there is surely no constitutional objection simply because the populace did not vote, Houck v. Little River District, supra, at 262, 264, 36 S.Ct., at 60, 61. To the extent the claim here protests the "discrimination" against the freeholders in a town whose governing body signs the petition, in that they "were deprived of the right to oppose the district," it is simply wrong on the facts. There is no conclusive presumption, when the governing body signs a petition, that "all freeholders . . . favor creation of the district." Rather, opposing freeholders in such towns remain as free as opposing freeholders in towns where petitions are circulated, to appear before the conservancy court and "object to the organization and incorporation of said district . . . ." Ohio Rev. Code Ann. § 6101.08 (Page 1975 Supp.). They are entitled to no more under the Constitution.
19
Appellants raise one other objection to the constitutionality of the statutory scheme, although not limited exclusively to the formation of the district. This is the claim that the selection of judges for the conservancy court violates the one-man, one-vote principle of Baker v. Carr, supra, and its progeny. But the one-man, one-vote decisions do not apply to the selection of judges, Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972), aff'd, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973). As the majority of the functions of the conservancy court are admittedly judicial, see Ohio Rev. Code Ann. §§ 6101.07, 6101.28, 6101.33 (Page 1975 Supp.), the majority of such a one-man-one-vote challenge has already been squarely rejected by Wells. With respect to the remaining functions, essentially legislative or executive in nature, the scope of powers granted to a conservancy district itself are so narrowly confined as not to call into play the strict application of one-man-one-vote doctrines. Conservancy districts, established solely for flood prevention and control, do not exercise "general governmental powers," as that phrase was defined in Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). Rather, flood control is a "special limited purpose," much like that found in Salyer Land Co. v. Tulare Water Dist., 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973), and, likewise, "the popular election requirements enunciated by Reynolds (v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)) and succeeding cases are inapplicable . . . ." Id., at 730, 93 S.Ct., at 1231. In such a situation, where both counties have an interest, and there is no evidence of discrimination against any group, see Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), such a selection process is permissible, Salyer Land Co. v. Tulare Water Dist., supra; cf. Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907).6 As I am unable to conclude that the decision to have one judge for each affected county is "wholly irrelevant to achievement of the regulation's objectives", Kotch v. River Port Pilot Comm'rs, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093 (1947), I would also reject this challenge and affirm the judgment of the District Court.
1
Appellants' reply brief before the District Court amply argues that Orr was not controlling, because that case concerned other constitutional challenges. Thus, the District Court was aware of the arguments this Court now relies on for a remand.
2
The judgment order entered in the case states: This matter came on for hearing by agreement of the parties upon the briefs of the parties on the issues of constitutionality of various sections of Chapter 6101 of the Ohio Revised Code dealing with Conservancy Districts." The District Court thus did canvass the contentions going to the merits, and decided the issue albeit on a ground not favored by the majority of this Court. But there can be no contention that appellants were precluded from entering relevant evidence into the record, or precluded from presenting a pertinent legal argument. Both parties, in essence, presented all they wished to on the constitutional issues to the District Court. Nor is there any hint that the factual record is in such a shape as to preclude determination of the issues by this Court. I am simply at a loss to explain this Court's curious remand.
3
None of the named plaintiffs allege in their complaint that they were residents at the time of the formation of the Conservancy District, although there are recitations in the body of the complaint that might indicate that at least some were residents at that time. Because of the failure to allege residency in 1966, their standing to raise such contentions is questionable.
4
Once the district is formed, the conservancy court has no incentive to decide a particular fact situation one way or another, as their pay remains the same in either case. The Jurisdictional Statement of appellants, however, suggests another, related attack:
"To receive payment of this per diem, of course, the treasury of the district must be full. The income of the district comes from assessments based on appraisals which the court must approve or disapprove . . .."
Yet this challenge is to the remote impact on funding from full town coffers, raised and rejected in Dugan v. Ohio, 277 U.S. 61, 48 S.Ct. 439, 72 L.Ed. 784 (1928). The payments are paid out of assessments, which are the responsibility, in the first instance, of the board of directors of the district, not the conservancy court, see Ohio Rev. Code Ann. §§ 6101.45, 6101.48 (Page 1975 Supp.). This issue surely raises no further challenge not worthy of a summary affirmance.
5
In Gibson v. Berryhill, 411 U.S. 564, 579, 93 S.Ct. 1689, 1698, 36 L.Ed.2d 488 (1973), where the proceeding was adjudicative in nature, but not criminal, we discussed whether the "pecuniary interest of the members . . . had sufficient substance to disqualify them . . . ." (Emphasis supplied.) Here, of course, the proceeding is more legislative than adjudicative, and is neither criminal nor stigmatizing.
6
We are told that the Pine Creek Conservancy District lies partially in Lawrence County and partially in Scioto County. We are told that the 1970 population was 56,868 and 76,951, respectively. We are also told that "(i)n neither instance is the entire county included in the district." We are not told, however, how much of either county is in the district, nor how many freeholders reside in either county. It would seem to follow that appellants fail in their burden of showing that "the voting power of the judges" has not been approximated "to the number of people they represent, or to the land or people within the district which they represent."
| 89
|
429 U.S. 624
97 S.Ct. 882
51 L.Ed.2d 92
Michael J. CODD, Police Commissioner, City of New York, et al., Petitioners,v.Elliott H. VELGER.
No. 75-812.
Feb. 22, 1977.
PER CURIAM.
1
Respondent Velger's action shifted its focus, in a way not uncommon to lawsuits, from the time of the filing of his complaint in the United States District Court for the Southern District of New York to the decision by the Court of Appeals for the Second Circuit which we review here. His original complaint alleged that he had been wrongly dismissed without a hearing or a statement of reasons from his position as a patrolman with the New York City Police Department, and under 42 U.S.C. § 1983, sought reinstatement and damages for the resulting injury to his reputation and future employment prospects. After proceedings in which Judge Gurfein (then of the District Court) ruled that respondent had held a probationary position and therefore had no hearing right based on a property interest in his job, respondent filed an amended complaint. That complaint alleged more specifically than had the previous one that respondent was entitled to a hearing due to the stigmatizing effect of certain material placed by the City Police Department in his personnel file. He alleged that the derogatory material had brought about his subsequent dismissal from a position with the Penn-Central Railroad Police Department, and that it had also prevented him from finding other employment of a similar nature for which his scores on numerous examinations otherwise qualified him.1
2
The case came on for a bench trial before Judge Werker, who, in the words of his opinion on the merits, found "against plaintiff on all issues." He determined that the only issue which survived Judge Gurfein's ruling on the earlier motions was whether petitioners, in discharging respondent had "imposed a stigma on Mr. Velger that foreclosed his freedom to take advantage of other employment opportunities." After discussing the evidence bearing upon this issue, Judge Werker concluded that "(i)t is clear from the foregoing facts that plaintiff has not proved that he has been stigmatized by defendants."
3
Among the specific findings of fact made by the District Court was that an officer of the Penn-Central Railroad Police Department was shown the City Police Department file relating to respondent's employment, upon presentation of a form signed by respondent authorizing the release of personnel information. From an examination of the file, this officer "gleaned that plaintiff had been dismissed because while still a trainee he had put a revolver to his head in an apparent suicide attempt." The Penn-Central officer tried to verify this story, but the Police Department refused to cooperate with him, advising him to proceed by letter. In rendering judgment against the respondent, the court also found that he had failed to establish "that information about his Police Department service was publicized or circulated by defendants in any way that might reach his prospective employers."
4
Respondent successfully appealed this decision to the Court of Appeals for the Second Circuit. That court held that the finding of no stigma was clearly erroneous. It reasoned that the information about the apparent suicide attempt was of a kind which would necessarily impair employment prospects for one seeking work as a police officer. It also decided that the mere act of making available personnel files with the employee's consent was enough to place responsibility for the stigma on the employer, since former employees had no practical alternative but to consent to the release of such information if they wished to be seriously considered for other employment. Velger v. Cawley, 525 F.2d 334 (1975).
5
We granted certiorari, sub nom. Cawley v. Velger, 427 U.S. 904, 96 S.Ct. 3188, 49 L.Ed.2d 1197 (1976), and the parties have urged us to consider whether the report in question was of a stigmatizing nature, and whether the circumstances of its apparent dissemination were such as to fall within the language of Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972) and Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). We find it unnecessary to reach these issues, however, because of respondent's failure to allege or prove one essential element of his case.
6
Assuming all of the other elements necessary to make out a claim of stigmatization under Roth and Bishop, the remedy mandated by the Due Process Clause of the Fourteenth Amendment is "an opportunity to refute the charge." 408 U.S., at 573, 92 S.Ct., at 2707. "The purpose of such notice and hearing is to provide the person an opportunity to clear his name," id., at 573 n. 12, 92 S.Ct., at 2707. But if the hearing mandated by the Due Process Clause is to serve any useful purpose, there must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee's reputation. Nowhere in his pleadings or elsewhere has respondent affirmatively asserted that the report of the apparent suicide attempt was substantially false. Neither the District Court nor the Court of Appeals made any such finding. When we consider the nature of the interest sought to be protected, we believe the absence of any such allegation or finding is fatal to respondent's claim under the Due Process Clause that he should have been given a hearing.
7
Where the liberty interest involved is that of conditional freedom following parole, we have said that the hearing required by the Due Process Clause in order to revoke parole must address two separate considerations. The first is whether the parolee in fact committed the violation with which he is charged, and the second is whether if he did commit the act his parole should, under all the circumstances, therefore be revoked. Morrissey v. Brewer, 408 U.S. 471, 479-480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 784, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656 (1973). The fact that there was no dispute with respect to the commission of the act would not necessarily obviate the need for a hearing on the issue of whether the commission of the act warranted the revocation of parole.
8
(1, 2) But the hearing required where a nontenured employee has been stigmatized in the course of a decision to terminate his employment is solely "to provide the person an opportunity to clear his name." If he does not challenge the substantial truth of the material in question, no hearing would afford a promise of achieving that result for him. For the contemplated hearing does not embrace any determination analogous to the "second step" of the parole revocation proceeding, which would in effect be a determination of whether or not, conceding that the report were true, the employee was properly refused re-employment. Since the District Court found that respondent had no Fourteenth Amendment property interest in continued employment,2 the adequacy or even the existence of reasons for failing to rehire him presents no federal constitutional question. Only if the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination is such a hearing required. Roth, supra; Bishop, supra.
9
Our decision here rests upon no overly technical application of the rules of pleading. Even conceding that the respondent's termination occurred solely because of the report of an apparent suicide attempt, a proposition which is certainly not crystal clear on this record, respondent has at no stage of this litigation affirmatively stated that the "attempt" did not take place as reported. The furthest he has gone is a suggestion by his counsel that "i(t) might have been all a mistake, (i)t could also have been a little horseplay." This is not enough to raise an issue about the substantial accuracy of the report. Respondent has therefore made out no claim under the Fourteenth Amendment that he was harmed by the denial of a hearing, even were we to accept in its entirety the determination by the Court of Appeals that the creation and disclosure of the file report otherwise amounted to stigmatization within the meaning of Board of Regents v. Roth, supra.
10
The judgment of the Court of Appeals is reversed with instructions to reinstate the judgment of the District Court.
11
So ordered.
12
Mr. Justice BLACKMUN, concurring.
13
I join the Court's per curiam opinion, but I emphasize that in this case there is no suggestion that the information in the file, if true, was not information of a kind that appropriately might be disclosed to prospective employers. We therefore are not presented with a question as to the limits, if any, on the disclosure of prejudicial, but irrelevant, accurate information.
14
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
15
I dissent from today's holding substantially for the reasons expressed by my Brother STEVENS in Part I of his dissent, despite my belief that the Court's ruling is likely to be of little practical importance.
16
Respondent alleged that he suffered deprivation of his liberty when petitioners terminated his employment and retained stigmatizing information in his employment file, information later disseminated to a prospective employer. Under Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972), respondent therefore was entitled to a timely pretermination hearing. The Court today reaffirms Roth, but holds that respondent's retrospective claim for damages and equitable relief under 42 U.S.C. § 1983 must be denied because "at no stage of this litigation,"1 ante, at 628, has he "raise(d) an issue about the substantial accuracy of the report" in question.2 Ibid. That holding, I believe, erroneously allocates the burden of introducing truth or falsity into the lawsuit.
17
Twice before this Term we have reasserted the principle that once a plaintiff establishes that another has interfered with his constitutional rights, the burden shifts to the wrongdoer to demonstrate that any such interference was strictly harmless. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 555, 270-271, 97 S.Ct. 555, 566, 50 L.Ed.2d 450; Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471. In this case respondent met his initial burden, for he adequately alleged that he has suffered injury to his reputation and job prospects in conjunction with a discharge from public employment, and that petitioners failed to comply with Roth's resulting requirement of a due process hearing. I agree that the District Court remains open to a determination that petitioners' denial of respondent's due process rights produced little3 or no compensable injury, since, even had the hearing properly been held, the stigmatizing charges would have remained unrefuted. But any such allegation and proof of truthful material properly is a defense to be raised by the defendant wrongdoer subject, of course, to appropriate disposition of the case by way of summary judgment should the employee thereupon fail to contest the "substantial accuracy of the report." Since petitioners interposed no such defense in this case, respondent's due process claim should be upheld.
18
I also agree with Part III of Mr. Justice STEVENS' dissenting opinion, and I would therefore remand this case to the Court of Appeals for further proceedings.
19
Mr. Justice STEWART, dissenting.
20
Although sharing generally the views expressed in the Court's opinion, I agree with Part III of Mr. Justice STEVENS' dissenting opinion, and I would for that reason remand this case to the Court of Appeals for further proceedings.
21
Mr. Justice STEVENS, dissenting.
22
There are three aspects of the Court's disposition of this case with which I disagree. First, I am not persuaded that a person who claims to have been "stigmatized" by the State without being afforded due process need allege that the charge against him was false in order to state a cause of action under 42 U.S.C. § 1983. Second, in my opinion the Court should not assume that this respondent was stigmatized, because the District Court's contrary finding was not clearly erroneous. Third, I would remand the case to the Court of Appeals to consider the claim that respondent had a property interest in his job, since that court did not decide this issue.
23
* The Court holds that respondent's failure to allege falsity negates his right to damages for the State's failure to give him a hearing. This holding does not appear to rest on the view that a discharged employee has no right to a hearing unless the charge against him is false.1 If it did, it would represent a radical departure from a principle basic to our legal system the principle that the guilty as well as the innocent are entitled to a fair trial.2 It would also be a departure from Board of Regents v. Roth, 408 U.S. 564, 572-575, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548. In that case the Court concluded that a person is deprived of liberty when the State's refusal to rehire him destroys his "good name" in the community or forecloses him from practicing his profession. A hearing may establish that such a deprivation of liberty is warranted because the charges are correct. But Bishop v. Wood, 426 U.S. 341, 349, 96 S.Ct. 2074, 2080, 48 L.Ed.2d 684, makes it clear that the truth or falsity of the charge "neither enhances nor diminishes (the employee's) claim that his constitutionally protected interest in liberty has been impaired." If the charge, whether true or false, involves a deprivation of liberty, due process must accompany the deprivation. And normally, as Roth plainly states, the Constitution mandates "a full prior hearing." 408 U.S. at 574, 92 S.Ct. at 2707.3
24
This hearing must include consideration of whether the charge, if true, warrants discharge. The discharge itself is part of the deprivation of liberty against which the employee is entitled to defend. Release of unfavorable information can damage an employee's reputation and employment prospects, but far greater injury is caused by an official determination, based on such information, that the employee is unfit for public employment. Indeed the Court has held that an injury to reputation had not resulted in a deprivation of liberty because it was not associated with the termination of employment. Paul v. Davis, 424 U.S. 693, 709-710, 96 S.Ct. 1155, 47 L.Ed.2d 405. Since allowing the employee to keep his job would eliminate (or at least lessen) the loss of liberty, due process requires that the hearing include the issue whether the facts warrant discharge.4 In short, the purpose of the hearing, as is true of any other hearing which must precede a deprivation of liberty, is two-fold: First, to establish the truth or falsity of the charge, and second, to provide a basis for deciding what action is warranted by the facts.5 Even when it is perfectly clear that the charge is true, the Constitution requires that procedural safeguards be observed. Cf. Groppi v. Leslie, 404 U.S. 496, 503, 92 S.Ct. 582, 586, 30 L.Ed.2d 632. For these reasons, I disagree with the Court's assertion that the purpose of the hearing is "solely" to provide the person with an opportunity to clear his name.6
25
Even if I agreed with the Court that this was the sole purpose of the hearing, I could not agree with its holding that failure to demonstrate falsity is fatal to the employee's suit. Surely the burden should be on the State to show that failure to provide due process was harmless error because the charges were true. See Mr. Justice BRENNAN's dissent, ante, p. 629.7 Moreover, failure to provide a hearing might give rise to damages unrelated to the possible outcome of the hearing.8
26
Today's holding may have the unfortunate effect of encouraging public officials to deny hearings when they feel confident of the correctness of their decision. But, in Mr. Justice Frankfurter's oft-quoted words:
27
"That a conclusion satisfies one's private conscience does not attest its reliability. The validity and moral authority of a conclusion largely depend on the mode by which it was reached. Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done." Anti-Fascist Committee v. McGrath, 341 U.S. 123, 171-172, 71 S.Ct. 624, 649, 95 L.Ed. 817 (concurring opinion).
28
As the last sentence in this quotation demonstrates, if state action has consequences sufficiently grievous to constitute a deprivation of constitutionally protected liberty, it is essential that fair procedures be followed for reasons that have nothing to do with the merits of the individual case. Today's holding is only a minor impairment of this principle. But the principle is one that admits of no compromise.
II
29
Although the plaintiff does not have the burden of proving that he was discharged for a false reason, if he claims that the discharge deprived him of liberty, he does have the burden of proving that he was stigmatized. The District Court found that respondent did not meet that burden in this case. Under the proper standard of appellate review,9 I cannot say that finding was clearly erroneous, particularly when the record discloses that the respondent did not prove exactly what the unfavorable information in his file was, or exactly what information was disseminated to others.
30
The District Court found that unfavorable information from respondent's police record reached a prospective employer in only one instance. In that instance, a private employer was allowed to see the file with respondent's permission. The private employer then discharged respondent, who was on probationary status. The District Court expressly found that no information was released to any government agency to which respondent had applied. App. 113a-114a.10 Thus, as far as the past effects of the unfavorable file are concerned, we have only the finding that one employer discharged respondent on the basis of the information. This does not in itself constitute a "stigma" as that term is used in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548.11
31
The Court of Appeals also relied on the nature of the information itself as demonstrating that future release to employers would bar respondent from obtaining employment. Velger v. Cawley, 525 F.2d 334, 336 (CA2 1975). Notwithstanding the broad discovery authorized by the Federal Rules of Civil Procedure, respondent failed to prove precisely what adverse information was in his personnel file. The revolver incident occurred sometime before respondent's 21st birthday, when he was still a trainee; as his counsel points out, it might well have been "a little horseplay"; and his subsequent conduct as a police officer was presumably good. There was no finding that the revolver incident was the official reason for discharge.12 On this record, it cannot be said as a matter of law that prospective employers would reject respondent's attempts to explain this incident and would uniformly refuse to hire him.
32
In the performance of our appellate function "(i)t is not enough that we might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent. . . . We are not given those choices, because our mandate is not to set aside findings of fact 'unless clearly erroneous.' " United States v. Real Estate Boards, 339 U.S. 485, 495-496, 70 S.Ct. 711, 717, 94 L.Ed. 1007.
33
I conclude that the Court of Appeals was incorrect in setting aside the District Court's findings of fact. Since those findings do not establish the existence of a stigma, the Court of Appeals erred in holding on this basis that a hearing was required.
III
34
It is possible, however, that a hearing was required because the discharge deprived respondent of a property interest. The District Court rejected the claim that he had an entitlement to his job as a matter of state law, but the Court of Appeals found it unnecessary to reach this issue. I believe there is enough merit to the property claim to justify a remand to the Court of Appeals with directions to consider it.
35
In Bishop v. Wood, the plaintiff's job was "terminable at the will of either party irrespective of the quality of performance by the other party." 426 U.S., at 345 n. 9, 96 S.Ct., at 2078, and accompanying text. There was no right to state judicial review. In this case, however, the state law may afford the employee some protection against arbitrary discharge. According to the state case cited by Judge Gurfein, App. 37a, the Police Commissioner may terminate only "unsatisfactory employee(s),"13 and his determination is reviewable in the state courts on an "arbitrary and capricious" standard. In re Going v. Kennedy, 5 A.D.2d 173, 176-177, 170 N.Y.S.2d 234, 237-238 (1958), aff'd, 5 N.Y.2d 900, 183 N.Y.S.2d 81, 156 N.E.2d 711 (1959); see In re Talamo v. Murphy, 38 N.Y.2d 637, 382 N.Y.S.2d 3, 345 N.E.2d 546 (1976).14 Unlike Bishop, in which a hearing would have been pointless because nothing plaintiff could prove would entitle him to keep his job, in this case the plaintiff may have had a right to continued employment if he could rebut the charges against him.15
36
By directing the Court of Appeals to reinstate the District Court judgment, the Court summarily rejects this claim without the benefit of briefing or oral argument on the point.16 I would remand the case to the Court of Appeals for consideration of this claim.
1
Respondent's amended complaint did not seek a delayed Roth hearing to be conducted by his former employer at which he would have the opportunity to refute the charge in question. Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). The relief he sought was premised on the assumption that the failure to accord such a hearing when it should have been accorded entitled him to obtain reinstatement and damages resulting from the denial of such hearing. We therefore have no occasion to consider the allocation of the burden of pleading and proof of the necessary issues as between the federal forum and the administrative hearing where such relief is sought.
2
The Court of Appeals did not pass on this "property interest" question. Respondent has not urged it as an alternative basis for affirming the judgment of that court, and indeed has all but conceded in his brief that the District Court's interpretation of the relevant New York cases is correct in this respect. Brief for Respondent 14. The opinion of the District Court on this point reflects a proper understanding of Roth, supra, and of Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and we see no reason to disturb its application of those cases to particular facets of the New York law of entitlement to public job tenure. Id., at 602 n. 7, 92 S.Ct., at 2700 n. 7.
1
The Court fortunately makes clear that it is not calling for an "overly technical application of the rules of pleading." Ante, at 628. Indeed, there may be instances where a plaintiff reasonably cannot be held responsible for failing to plead falsity in his complaint. For example, in this instance, respondent cannot be faulted for his failure to plead falsity, since his complaint alleged that he "does not know the contents of his personnel file and has never seen or been advised of any derogatory matter placed in his file." App. 51a. Thus, his undoing occurred, according to the Court, in the later "stage(s) of this litigation," when he learned of the specific contents of the employment file but made little effort "to raise an issue about the substantial accuracy of the report." Ante, at 628.
2
Respondent has never argued that the disseminated information, while truthful, was not properly informative of his role as policeman or employee. As Mr. Justice BLACKMUN notes, ante, at 629, the Court's opinion, therefore, does not address and does not foreclose the question of whether the Constitution imposes separate constraints upon the collection and dissemination of stigmatizing information that bears only an attenuated relationship to one's job performance or qualifications.
3
A determination of truthful material would preclude an award of damages for false stigmatization of plaintiff's reputation. Nonetheless, because of petitioners' failure to satisfy Roth's requirement of a pretermination due process hearing, respondent still would have suffered deprivation of an established constitutional right. As with any infringement of an intangible constitutional right, e. g., Nixon v. Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759 (1927) (damages allowable for unlawful denial of the right to vote), a jury should be permitted to decide whether to fix and award damages perhaps only nominal for the very denial of a timely due process forum where a stigmatized individual could participate in the process of attempting to clear his name.
1
The Court indicates, ante, at 625 n. 1, that its holding is premised on the form of relief sought. If falsity were a precondition to the existence of a constitutional violation, the form of relief would be irrelevant. For to grant any relief, the federal court would first have to determine that a violation had occurred, which would in turn require a finding of falsity. I recognize that there is authority for the view that falsity is an element of the violation. See Sims v. Fox, 505 F.2d 857, 863-864 (CA5 1974) (en banc), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 678. Cf. Paul v. Davis, 424 U.S. 693, 709-710, 96 S.Ct. 1155, 1164-1165, 47 L.Ed.2d 405 (describing Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, as involving government "defamation").
2
"When we deny even the most degraded person the rudiments of a fair trial, we endanger the liberties of everyone. We set a pattern of conduct that is dangerously expansive and is adaptable to the needs of any majority bent on suppressing opposition or dissension.
"It is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law." Anti-Fascist Committee v. McGrath, 341 U.S. 123, 179, 71 S.Ct. 624, 652, 95 L.Ed. 817 (Douglas, J., concurring).
3
As I read Part II of Roth, supra, at 572-575, 92 S.Ct., at 2706-2708, which discusses the kind of "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment, there are two quite different interests which may be implicated when a nontenured employee is discharged. First, the Court, 408 U.S., at 573, 92 S.Ct., at 2707, considers the individual's interest in " 'good name, reputation, honor, or integrity.' " It is with respect to this reputational interest that the Court indicates, id., at 573 n. 12, 92 S.Ct., at 2707, that a name-clearing hearing is constitutionally required. That footnote does not tell us whether that hearing must precede the injury to reputation, and surely does not imply that such a hearing is the only remedy available to an employee whose constitutional right to due process has been violated.
Second, in the ensuing paragraphs, the Roth opinion considers the individual interest in avoiding "a stigma or other disability" that forecloses employment opportunities. With respect to this interest, the Court rather clearly indicates, id., at 574, 92 S.Ct., at 2707, that no such stigma may be imposed without a "full prior hearing."
4
Similarly, since disclosure of the charges is also part of the deprivation of liberty, Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684, the hearing could properly include the issue whether the charges should remain confidential, or whether the written record should at least be modified to reflect a less one-sided description of the events.
5
The Court states, ante, at 627:
"Where the liberty interest involved is that of conditional freedom following parole, we have said that the hearing required by the Due Process Clause in order to revoke parole must address two separate considerations. The first is whether the parolee in fact committed the violation with which he is charged, and the second is whether if he did commit the act his parole should, under all the circumstances, therefore be revoked. Morrissey v. Brewer, 408 U.S. 471, 479-480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 784, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656 (1973). The fact that there was no dispute with respect to the commission of the act would not necessarily obviate the need for a hearing on the issue of whether the commission of the act warranted the revocation of parole."
This reasoning is equally applicable to a decision to revoke a person's employment for a stigmatizing reason. The fact that there is no dispute with respect to the commission of the act involved does not necessarily obviate the need for a hearing on the issue of whether employment should be terminated.
6
The Court states, ibid., that "the hearing required where a nontenured employee has been stigmatized in the course of a decision to terminate his employment is solely 'to provide the person an opportunity to clear his name.' " (Emphasis added.) Earlier, ibid., the Court states: "Assuming all of the other elements necessary to make out a claim of stigmatization under Roth and Bishop, the remedy mandated by the Due Process Clause of the Fourteenth Amendment is 'an opportunity to refute the charge.' 408 U.S., at 573, 92 S.Ct., (2701,) at 2707." Of course, in neither Roth nor Bishop did the Court state or imply that a name-clearing hearing was the only remedy mandated by the Constitution.
7
The Court's contrary approach would produce perverse results when the relief sought by the plaintiff includes an administrative hearing. To establish his right to such relief, the plaintiff would have to plead and presumably prove that the charges against him are false. But once it is established that the charges are false, there is no longer any reason to hold an administrative hearing on that subject.
This problem is squarely presented by this case because respondent did request such a hearing. At trial, respondent's counsel made the following statement:
"And therefore, he should be reinstated and he should be given a full hearing, an adversary hearing." App. 93a.
Under modern trial practice, no more formal request was necessary. The amended complaint had requested a declaratory judgment that "the action of defendants in terminating plaintiff's employment without charges and without a hearing (was) in violation of the Constitution . . .," and had sought "such additional alternative relief as may seem to this Court to be just, proper and equitable." Id., at 55a-56a. And, of course, Fed.Rule Civ.Proc. 54(c) provides that "every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings."
8
See Judge Tone's thoughtful discussion of this problem in Hostrop v. Board of Junior College Dist. 515, 523 F.2d 569, 578-580 (CA7 1975).
9
The general principle governing review of a District Court's findings of fact is clear:
"In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate court's must constantly have in mind that their function is not to decide factual issues de novo. The authority of an appellate court, when reviewing the findings of a judge as well as those of a jury, is circumscribed by the deference it must give to decisions of the trier of the fact, who is usually in a superior position to appraise and weigh the evidence. The question for the appellate court under Rule 52(a) is not whether it would have made the findings the trial court did, but whether 'on the entire evidence (it) is left with the definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)." Zenith Corp. v. Hazeltine, 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129.
10
The Court of Appeals found "every indication" that respondent would have obtained a job except for the contents of his file. Velger v. Cawley, 525 F.2d 334, 335 (CA2 1975). Apart from the one instance of disclosure found by the District Court, this conclusion seems to have been based on an incident in which respondent was told he would be hired if his character investigation was satisfactory, and on the fact that he had passed numerous civil service examinations and received several job interviews but no jobs. The incident referred to by the Court of Appeals proves nothing about the effect of the contents of the file, since respondent testified that he refused to give that employer permission to inspect the file. App. 81a. The fact that respondent was unsuccessful in obtaining a job, despite numerous attempts, good examination scores, and several interviews, does not prove that he was stigmatized by information in his file since the District Court found that those employers had not had access to the file. Entirely apart from the file, there may have been factors which made respondent less attractive to employers than other available applicants.
11
Roth recognizes two types of stigma. See n. 3, supra. First, the State's action "might seriously damage (the employee's) standing and associations in his community." 408 U.S., at 573, 92 S.Ct., at 2707. The release of information to a single employer at the employee's request can hardly be considered an injury to the employee's community standing. Second, the State's action might have the effect of "foreclos(ing) his freedom to take advantage of other employment opportunities." Ibid. It is not enough, however, to make him "somewhat less attractive to some other employers," for that "would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of 'liberty.' " Id., 408 U.S. at 574 n. 13, 92 S.Ct. at 2708. The fact that one employer considered the information a bar to employment does not necessarily mean that most other employers would have the same reaction. In short, on the basis of the entire record the District Court could find that this single incident of disclosure and its aftermath do not establish a sufficiently grievous harm to reputation to constitute a deprivation of liberty.
12
The District Court did find that a private employer who inspected the file had "gleaned" from the file that this was the reason for the discharge.
13
In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15, the employee could be discharged only for " 'such cause as will promote the efficiency of (the) service,' " id., at 151-152, 94 S.Ct., at 1643 (opinion of Rehnquist, J.). Six Members of the Court were satisfied that that standard was sufficient to create an entitlement protected by the Due Process Clause. This respondent had a right to keep his job if he proved "satisfactory." I do not know whether the difference between Kennedy's entitlement and this respondent's is of constitutional dimensions, but the similarity to Arnett is sufficient to justify a remand.
14
In re Going v. Kennedy, the Appellate Division noted that the appointing officer had been delegated the authority to terminate "unsatisfactory employee(s)," and compared the probation period to an additional employment test designed to determine whether an employee is "able to meet all requirements or expectations in filling the position." 5 A.D.2d, at 178, 170 N.Y.S.2d at 239. The New York Court of Appeals, citing Going with approval, applied the "arbitrary and capricious" standard in Talamo to determine whether there was a "rational basis" for the police commissioner's decision to discharge a probationary police officer. 38 N.Y.2d, at 639, 382 N.Y.S.2d, at 4, 345 N.E.2d, at 547. See also In re Farrell v. New York City Police Dept., 44 A.D.2d 782, 355 N.Y.S.2d 99 (1974), aff'd, 37 N.Y.2d 843, 378 N.Y.S.2d 35, 340 N.E.2d 469 (1975).
15
Cf. Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570:
"A person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing."
Even if respondent's entitlement is a sufficient property interest to trigger due process, he is not necessarily entitled to an elaborate adversary hearing. "Once it is determined that due process applies, the question remains what process is due." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484. But at least respondent would be entitled to notice of the charge against him and an opportunity to respond, if only in writing.
16
Respondent did not abandon that claim in this Court. The portion of his brief cited by the majority, ante, at 628 n. 2, concerns the issue whether state law itself requires a hearing, see Brief for Respondent 14; this is an entirely different issue than whether state law creates a sufficient entitlement to trigger a federal right to a hearing. To preserve his right to a remand, the party prevailing below need not argue the merits of claims the lower court failed to reach. See generally Dandridge v. Williams, 397 U.S. 471, 475-476, n. 6, 90 S.Ct. 1153, 1156-1157, 25 L.Ed.2d 491.
| 34
|
429 U.S. 507
97 S.Ct. 891
51 L.Ed.2d 1
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.
ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, HYDRAULIC SPRINKLER, PNEUMATIC TUBE, ICE MACHINE AND GENERAL PIPEFITTERS OF NEW YORK AND VICINITY, LOCAL UNION NO. 638, etc.
No. 75-777.
Argued Oct. 6, 1976.
Decided Feb. 22, 1977.
Syllabus
A subcontractor (Hudik) had a subcontract with a general contractor (Austin) for the heating, ventilation, and air conditioning work in the construction of a home for the aged. The subcontract job specifications provided that Austin would purchase certain climate control units manufactured by Slant/Fin Corp. to be installed in the home, and that the internal piping in these units was to be cut, threaded, and installed at the Slant/Fin factory. However, the collective-bargaining agreement between respondent union and Hudik provided that pipe threading and cutting were to be performed on the jobsite. When the units arrived on the job, the union steamfitters employed by Hudik refused, at the union's instigation, to install them on the ground that the factory-installed internal piping violated the collective-bargaining agreement and was steamfitters' work. Austin then filed a complaint with the National Labor Relations Board, alleging that the union had committed an unfair labor practice under § 8(b)(4)(B) of the National Labor Relations Act, which makes it an unfair labor practice for a union to induce employees to refuse to handle particular goods or products or coerce any person, where "an object" of the inducement or coercion is to require any person to cease doing business with any other person, provided that the section shall not be construed to make unlawful any primary strike or primary picketing. Specifically, Austin charged that the union's action was taken to force Hudik to cease doing business with Austin and to force Hudik and Austin to cease dealing with Slant/Fin's products. The Administrative Law Judge held that the union had violated § 8(b) (4)(B), because in seeking to enforce the collective-bargaining agreement and to obtain the work the union's object was in reality to influence Austin by exerting pressure on Hudik, an employer who had no power to award the work to the union. The NLRB agreed, noting that although the union's refusal to install the climate-control units was based on a valid work-preservation clause in the collective-bargaining agreement, the pressure exerted by the union on Hudik was undertaken for its effect on other employers, and thus was secondary and prohibited by § 8(b)(4)(B). The Court of Appeals set aside the NLRB's cease-and-desist order, disagreeing with the NLRB on both legal and factual grounds. Held: The union's refusal to install the climate-control units was secondary activity prohibited by § 8(b)(4)(B), rather than primary activity beyond the reach of that provision. Pp. 514-532.
(a) The existence of a work-preservation agreement is not an adequate defense to a § 8(b)(4)(B) unfair labor practice charge. To hold, as the Court of Appeals did, that a work stoppage is necessarily primary and not an unfair labor practice when it aims at enforcing a legal promise in a collective-bargaining agreement is inconsistent with the statute as construed in Local 1976, United Brotherhood of Carpenters v. NLRB, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (Sand Door ), a construction that was accepted and that has never been abandoned by Congress. Pp. 514-521.
(b) The Court of Appeals also erred in taking the view that the NLRB's "control" test, under which the union commits an unfair labor practice under § 8(b)(4)(B) when it coerces an employer in order to obtain work that the employer has no power to assign, is invalid as a matter of law because it fails to comply with the standard of National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357, that the union's conduct be judged in light of all the relevant circumstances. It does not appear that either the Administrative Law Judge or the NLRB, in agreeing with him, articulated a different standard from that recognized as proper in National Woodwork, or that the NLRB, in applying its control test failed to consider all of the relevant circumstances. Pp. 521-528.
(c) The record amply supports the NLRB's conclusion that the union's objectives were not confined to the employment relationship with Hudik but included the object of influencing Austin in a manner prohibited by § 8(b)(4) (B). Pp. 528-531.
(d) The Court of Appeals was obliged to review the case under the statutory standard of whether the NLRB's findings were "supported by substantial evidence on the record considered as a whole," and thus in reweighing the facts and setting aside the NLRB's order, the Court of Appeals improperly substituted its own views of the facts for those of the NLRB. Pp. 531-532.
172 U.S.App.D.C. 225, 521 F.2d 885, reversed.
Norton J. Come, Washington, D.C., for petitioner.
Laurence Gold, Washington, D.C., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Under § 8(b)(4)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4) (B),1 a union commits an unfair labor practice when it induces employees to refuse to handle particular goods or products or coerces any person engaged in commerce, where "an object" of the inducement or coercion is to require any person to cease doing business with any other person. A proviso, added to § 8(b)(4)(B) in 1959, declares that the section "shall (not) be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing." Although without the proviso the section on its face would seem to cover any coercion aimed at forcing a cessation of business, the National Labor Relations Board (Board) and the judiciary have construed the statute more narrowly, both before and after the proviso was added, to prohibit only secondary, rather than primary, strikes and picketing.2
2
Among other things, it is not necessarily a violation of § 8(b)(4)(B) for a union to picket an employer for the purpose of preserving work traditionally performed by union members even though in order to comply with the union's demand the employer would have to cease doing business with another employer. National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967) (National Woodwork ). The question now before us is whether a union seeking the kind of work traditionally performed by its members at a construction site violates § 8(b)(4)(B) when it induces its members to engage in a work stoppage against an employer who does not have control over the assignment of the work sought by the union. More specifically, the issue is whether a union-instigated refusal of a subcontractor's employees to handle or install factory-piped climate-control units, which were included in the general contractor's job specifications and delivered to the construction site, was primary activity beyond the reach of § 8(b)(4)(B) or whether it was secondary activity prohibited by the statute. As we shall see, this issue turns on whether the boycott was "addressed to the labor relations of the contracting employer vis-a-vis his own employees," National Woodwork, supra, at 645, 87 S.Ct., at 1268, and is therefore primary conduct, or whether the boycott was "tactically calculated to satisfy union objectives elsewhere," id., at 644, 87 S.Ct., at 1268, in which event the boycott would be prohibited secondary activity.
3
* Austin Co., Inc. (Austin), was the general contractor and engineer on a construction project known as the Norwegian Home for the Aged.3 As the result of competitive bidding, Austin awarded a subcontract to Hudik-Ross Co., Inc. (Hudik), to perform the heating, ventilation, and air-conditioning work for the Norwegian Home construction. Hudik employs a regular complement of about 10 to 20 steamfitters. For many years, these employees have been represented by respondent Enterprise Association (Enterprise), a plumbing and pipefitting union. Over the years Hudik and Enterprise have entered into successive collective-bargaining agreements, and such an agreement was in force at the time that the dispute involved in the present litigation arose. Austin had no agreement with Enterprise regarding the work to be done on the Norwegian Home project.
4
The subcontract between Austin and Hudik incorporated Austin's job specifications. These specifications provided that Austin would purchase certain climate-control units manufactured by Slant/Fin Corp. (Slant/Fin) to be installed in the Norwegian Home. The specifications further provided that the internal piping in the climate-control units was to be cut, threaded, and installed at the Slant/Fin factory. At the time that Hudik entered into the subcontract with Austin, Hudik was aware that its employees would be called upon to install the Slant/Fin units but not to do the internal piping work for the units on the jobsite.
5
Traditionally, members of respondent union have performed the internal piping on heating and air-conditioning units on the jobsite. Also, Rule IX of the then-current collective-bargaining contract between Hudik and Enterprise provided that pipe threading and cutting were to be performed on the jobsite in accordance with Rule V, which in turn specified that the work would be performed by units of two employees.4 There had been similar or identical provisions in previous collective-bargaining contracts. There is no dispute that the work designated by Austin's specifications to be performed at the Slant/Fin factory was the kind of cutting and threading work referred to in Rule IX.
6
When the Slant/Fin units arrived on the job, the union steamfitters refused to install them. The business agent of the union told Austin's superintendent that the steamfitters "would not install the Slant/Fin units because the piping inside the units was steamfitters' work." Enterprise Association of Steam Pipefitters, 204 N.L.R.B. 760, 762 (1973). Hudik was informed that the factory-installed internal piping in the units was in violation of Rule IX of the union contract and "that such piping was Local 638's work." Ibid. When the union persisted in its refusal to install the units, thereby interfering with the completion of the Norwegian Home job, Austin filed a complaint with the Board, alleging that Enterprise had committed an unfair labor practice under § 8(b)(4)(B) of the National Labor Relations Act by engaging in a strike and encouraging Hudik employees to refuse to install the Slant/Fin units in furtherance of an impermissible object. Specifically, Austin charged that the union's action was taken to force Hudik to cease doing business with Austin and to force Hudik and Austin to cease dealing with the products of Slant/Fin. The union's position before the Administrative Law Judge was that it was merely seeking to enforce its contract with Hudik and to preserve the jobsite cutting and threading work covered by Rule IX.
7
The Administrative Law Judge found that because Austin had specified factory-piped units, there was no internal threading and cutting work to be done on the jobsite of the kind covered by Rule IX and that no such work at the Norwegian Home project could be obtained through pressure on Hudik alone, even if Hudik was forced to abandon its contract, unless and until Austin changed its job specifications so as to provide the piping the union members had traditionally performed for Hudik as a subcontractor. The Administrative Law Judge thus concluded that the union had violated § 8(b)(4)(B) because in seeking to enforce its contract and to obtain the work at the Norwegian Home jobsite, the union's object was in reality to influence Austin by exerting pressure on Hudik, an employer who had no power to award the work to the union.
8
The Board agreed. Enterprise Assn., supra. It noted first that the steamfitters' refusal to install the Slant/Fin units "was based on a valid work preservation clause in the agreement with Hudik, the subcontractor, and was for the purpose of preserving work they had traditionally performed." 204 N.L.R.B. 760. This did not settle the legality of the work stoppage under § 8(b)(4)(B), however; for "Hudik was incapable of assigning its employees this work; such work was never Hudik's to assign in the first place. . . . Respondent was exerting prohibited pressure on Hudik with an object of either forcing a change in Austin's manner of doing business or forcing Hudik to terminate its subcontract with Austin. Since the pressure exerted by the Respondent on Hudik was undertaken for its effect on other employers, this pressure was secondary and prohibited by Section 8(b)(4)(B)." Ibid. (as amended by order of Aug. 30, 1973).
9
A divided Court of Appeals for the District of Columbia Circuit, sitting en banc, set aside the Board's order. 172 U.S.App.D.C. 225, 521 F.2d 885 (1975). We granted certiorari because of an apparent conflict between the Circuits.5 424 U.S. 908, 96 S.Ct. 1101, 47 L.Ed.2d 311 (1976).
II
10
In setting aside the Board's order, the Court of Appeals disagreed with the Board on both legal and factual grounds. We deal first with the Court of Appeals' proposition that "an employer who is struck by his own employees for the purpose of requiring him to do what he has lawfully contracted to do to benefit those employees can (n)ever be considered a neutral bystander in a dispute not his own." 172 U.S.App.D.C., at 243, 521 F.2d, at 903 (footnote omitted). Under this view, a strike or refusal to handle undertaken to enforce such a contract would not itself warrant an inference that the union sought to satisfy secondary, rather than primary, objectives, whatever the impact on the immediate employer or on other employers might be. Thus, where a union seeks to enforce a work-preservation agreement by a strike or work stoppage, the existence of the agreement would always provide an adequate defense to a § 8(b) (4) unfair labor practice charge. This approach is untenable under the Act and our cases construing it.
11
Carpenters v. NLRB, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958) (Sand Door), involved a collective-bargaining contract containing a provision, then quite legal, that " 'workmen shall not be required to handle non-union material.' " Id., at 95, 78 S.Ct., at 1014. The case arose when certain nonunion doors arrived at a construction site and the union notified the contractor that the doors would not be hung. The Board found that the union had committed an unfair labor practice by encouraging employees to strike or refuse to handle the disputed doors in order to force the contractor to cease doing business with the door manufacturer. The union stood squarely on the contract; and as the case arrived here the sole question was whether the collective-bargaining provision was a "defense to a charge of an unfair labor practice under § 8(b)(4)(A) when, in the absence of such a provision, the union conduct would unquestionably be a violation."6 Id., at 101, 78 S.Ct., at 1017.
12
The union argued that if the statute was aimed at protecting neutral employers from becoming involuntarily involved in the labor disputes of others, "protection should not extend to an employer who has agreed to a hot cargo provision, for such an employer is not in fact involuntarily involved in the dispute," especially "when the employer takes no steps at the time of the boycott to repudiate the contract and to order his employees to handle the goods." In such circumstances, "(t)he union does no more than inform the employees of their contractual rights and urge them to take the only action effective to enforce them." Id., at 105, 78 S.Ct., at 1019. These arguments were squarely rejected:
13
"Nevertheless, it seems most probable that the freedom of choice for the employer contemplated by § 8(b)(4)(A) is a freedom of choice at the time the question whether to boycott or not arises in a concrete situation calling for the exercise of judgment on a particular matter of labor and business policy. Such a choice, free from the prohibited pressures whether to refuse to deal with another or to maintain normal business relations on the ground that the labor dispute is no concern of his must as a matter of federal policy be available to the secondary employer notwithstanding any private agreement entered into between the parties. See National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 364, 60 S.Ct. 569, 577, 84 L.Ed. 799. This is so because by the employer's intelligent exercise of such a choice under the impact of a concrete situation when judgment is most responsible, and not merely at the time a collective bargaining agreement is drawn up covering a multitude of subjects, often in a general and abstract manner, Congress may rightly be assumed to have hoped that the scope of industrial conflict and the economic effects of the primary dispute might be effectively limited." Id., at 105-106, 78 S.Ct., at 1019.
14
The Court went on to hold that inducements of employees that are prohibited by § 8(b)(4) in the absence of a contractual provision countenancing them "are likewise prohibited when there is such a provision," 357 U.S., at 106, 78 S.Ct., at 1020. This was true even though the making and voluntary observance of such contracts were not contrary to law at the time that Sand Door was decided; however lawful, these contracts could not be enforced "by the means specifically prohibited" by the section. Id., at 108, 78 S.Ct., at 1020. The Court held that the legality of the union's conduct is to be viewed at the time of the boycott.
15
Sand Door's holding that employer promises in a collective-bargaining contract provide no defense to a § 8(b)(4) charge against a union has not been disturbed. In contemplating the 1959 amendments to the Landrum-Griffin Act, Congress viewed that part of Sand Door in which the Court suggested that contractual provisions having secondary objectives were not forbidden by law as creating a loophole in the Act. Section 8(e) was enacted to close that loophole. See National Woodwork, 386 U.S., at 634, 87 S.Ct., at 1262. Section 8(e), 29 U.S.C. § 158(e) (1970 ed., Supp.V), makes it an unfair labor practice, with provisos, for unions and employers to enter into collective-bargaining contracts whereby the employer ceases or agrees to cease doing business with any other person. Although on its face not limited to agreements having secondary objectives, the section was construed by the Board and this Court as only closing the loophole left by Sand Door and as having no broader reach than § 8(b)(4) itself. Section 8(e) does not prohibit agreements made for "primary" purposes, including the purpose of preserving for the contracting employees themselves work traditionally done by them. 386 U.S., at 635, 87 S.Ct. 1262.
16
By no stretch of the imagination, however, can it be thought, that in enacting § 8(e) Congress intended to disagree with or ease Sand Door's construction of § 8(b)(4), under which a perfectly legal collective-bargaining contract may not be enforced by a strike or refusal to handle which in the absence of such a provision would be a violation of the statute. The intention of Congress as to this aspect of Sand Door could not be clearer. A proviso to § 8(e) exempted from that section certain agreements in the construction industry that the section would otherwise have prohibited, but the Committee Report explained that the "proviso applies only to section 8(e) and therefore leaves unaffected the law developed under section 8(b)(4)," noting particularly that picketing to enforce agreements saved by the proviso "would be illegal under the Sand Door case." H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 39 (1959), 1 NLRB Legislative History of the Labor-Management and Disclosure Act of 1959, p. 943 (1959) (hereafter 1 Leg. Hist.); U.S.Code Cong. & Admin.News 1959, pp. 2511. Undoubtedly, Congress embraced the rule then followed by the Board and approved by this Court in Sand Door that a contract permitting or justifying the challenged union conduct is no defense to a § 8(b)(4) charge. To hold, as the Court of Appeals did, that a work stoppage is necessarily primary and not an unfair labor practice when it aims at enforcing a legal promise in a collective-bargaining contract is inconsistent with the statute as construed in Sand Door, a construction that was accepted and that has never been abandoned by Congress.
17
Nor did we modify Sand Door in National Woodwork. The union in National Woodwork induced the employees of four contractors not to handle precut and prefitted doors that had arrived at the respective construction sites. In three instances, the precut doors had been specified by the architect or the owner; in the fourth, the decision to use precut doors was that of the immediate contractor-employer, Frouge Corp. In each case, there was a provision in the collective-bargaining contract that carpenters would not be required to handle precut or prefitted doors.7 The General Counsel of the Board filed charges in all four cases, asserting that the agreements were forbidden by § 8(e) and that the refusal to handle in each case violated § 8(b) (4)(B). The trial examiner, whose findings were adopted by the Board, concluded that none of the agreements was invalid on its face but that in seeking to enforce the contract by refusing to handle in the three situations where the doors had been specified by the architect or owner, the union had violated § 8(b)(4)(B). In these situations, the legality of the contract no more immunized the work stoppage from the § 8(b)(4) charge than would "the then-lawful 'hot-cargo' clause in the Sand Door case." Metropolitan Dist. Council of Phila., 149 N.L.R.B. 646, 658 (1964). On the other hand, in the Frouge situation, where the choice lay with the contractor who "therefore was in a position to . . . settle the dispute with the District Council by granting its request to assign that work to the carpenters on the jobsite," id., at 659 n. 21, the union was seeking only to regulate the relations between the general contractor and his own employees and to protect a legitimate economic interest of the employees by preserving their unit work. Neither the execution nor the enforcement of the Frouge agreement violated the Act. Only the Frouge decision was appealed. The Court of Appeals for the Seventh Circuit reversed in part, concluding that the Frouge agreement was prohibited by § 8(e).
18
In reversing the Court of Appeals' § 8(e) holding and agreeing that § 8(b)(4) (B) had not been violated, we held that neither the Frouge contract nor its maintenance was illegal. Our rationale was not that the work-preservation provision was valid under § 8(e) and that therefore it could be enforced by striking or picketing without violating § 8(b)(4)(B). Expressly recognizing the continuing validity of the Sand Door decision that a valid contract does not immunize conduct otherwise violative of § 8(b)(4), 386 U.S., at 634, we held that neither § 8(b)(4)(B) nor § 8(e) forbade primary activity by employees designed to preserve for themselves work traditionally done by them and that on this basis the union's conduct violated neither section. To determine whether the Frouge employees' refusal to handle was permissible primary activity or was forbidden secondary coercion, we inquired:
19
"(Whether) under all the surrounding circumstances, the Union's objective was preservation of work for Frouge's employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere. Were the latter the case, Frouge, the boycotting employer, would be a neutral bystander, and the agreement or boycott would, within the intent of Congress, become secondary. There need not be an actual dispute with the boycotted employer, here the door manufacturer, for the activity to fall within this category, so long as the tactical object of the agreement and its maintenance is that employer, or benefits to other than the boycotting employees or other employees of the primary employer thus making the agreement or boycott secondary in its aim. The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees." 386 U.S., at 644-645, 87 S.Ct., at 1258 (footnotes omitted).
20
We went on to rule that there was substantial evidence to sustain the finding of the Board that both the agreement and the union activity at the Frouge jobsite related solely to the preservation of the traditional tasks of the jobsite carpenters. In consequence, we agreed that there was neither a § 8(b) (4)(B) nor a § 8(e) unfair labor practice.
21
There is thus no doubt that the collective-bargaining provision that pipes be cut by hand on the job and that the work be conducted by units of two is not itself a sufficient answer to a § 8(b)(4)(B) charge. The substantial question before us is whether, with or without the collective-bargaining contract, the union's conduct at the time it occurred was proscribed secondary activity within the meaning of the section. If it was, the collective-bargaining provision does not save it. If it was not, the reason is that § 8(b)(4)(B) did not reach it, not that it was immunized by the contract. Thus, regardless of whether an agreement is valid under § 8(e), it may not be enforced by means that would violate § 8(b)(4).8
III
22
The Court of Appeals was also of the view that the Board's "control" test, under which the union commits an unfair labor practice under § 8(b)(4)(B) when it coerces an employer in order to obtain work that the employer has no power to assign, is invalid as a matter of law because it fails to comply with the National Woodwork standard that the union's conduct be judged in light of all the relevant circumstances. Again, we think the Court of Appeals was in error.
23
As we have seen, in National Woodwork the Board found unfair labor practices in three instances by inferring an improper secondary objective from the fact that the work sought by the union was not under the control of the immediate employer, but it found no unfair practice in the Frouge situation because Frouge did have the power to settle the dispute with the union. In sustaining the Board with respect to Frouge and in posing the issue whether under all the circumstances the boycott was tactically calculated to satisfy union objectives elsewhere, we did not purport to announce a new legal standard and then ourselves to assess the facts in light of the modified construction of the statute. Such an assessment would have been a more proper task for the Board in the first instance;9 yet there was no remand for further proceedings in the light of a newly fashioned standard. The Board had sustained the trial examiner, who had examined the facts to determine whether the agreement and boycott had secondary objectives and concluded that they did not. This Court simply sustained the Board's findings as supported by substantial evidence, without questioning either the legal standard employed by the Board or the Board's resolution of the facts under that standard. Furthermore, the Court expressly recognized that as the case came to it, no question was raised about the results with respect to the three contractors other than Frouge. 386 U.S., at 616-617, n. 3, 87 S.Ct. at 1253-1254.
24
Here, the Administrative Law Judge, cognizant of National Woodwork and the Board's own precedents, examined the history both of the relevant jobsite work traditionally done by the steamfitters and of the contractual provision calling for jobsite cutting and threading of pipe, assessed the agreement and refusal to handle in light of the actual conditions in the New York market, and concluded that " 'under all the surrounding circumstances,' " Hudik was "only a means or instrumentality for exerting pressure against Slant/Fin and Austin with whom the Union has its primary dispute."10 It thus does not appear to us that either the Administrative Law Judge or the Board, in agreeing with him, articulated a different standard from that which this Court recognized as the proper test in National Woodwork.11
25
Nor is it the case that the Board, in applying its control standard, failed to consider all of the relevant circumstances. Surely the fact that the Board distinguishes between two otherwise identical cases because in the one the employer has control of the work and in the other he has no power over it does not indicate that the Board has ignored any material circumstance. The contrary might more rationally be inferred. Of course, the Board may assign to the presence or absence of control much more weight than would the Court of Appeals, but this far from demonstrates a departure from the totality-of-the-circumstances test recognized in National Wordwork.12
26
There is little or no basis in the statute, its legislative history, or our cases for the Court of Appeals' conclusion that the distinction the Board has drawn between those cases where the struck employer is in position to deliver the work to the union and those where the work is controlled by others is erroneous as a matter of law. The Board has taken this approach in applying § 8(b)(4) at least since 1958, when it decided Clifton Deangulo, 121 N.L.R.B. 676. In that case, the facts of which were similar to this one, Limbach, a plumbing and heating contractor, was engaged to install certain comfort induction units. The union claimed that certain provisions in its collective-bargaining agreement with Limbach reserved to its members much of the work that had been performed at the factory on these units. Therefore, at the union's behest, the employees refused to handle the units. Relying on its decision in the Sand Door case, Local 1976, United Brotherhood of Carpenters & Joiners, 113 N.L.R.B. 1210 (1955), and ruling against the union, the Board rejected the union's "main contentions . . . that the dispute was with Limbach, who was the primary employer; that the Union was seeking merely to exercise a valid contractual right to which Limbach had voluntarily agreed in advance, and that it was therefore engaged in privileged primary activity, not in proscribed secondary activity." 121 N.L.R.B., at 684. The Board also observed that Limbach "had given to union members all work within the Union's jurisdiction which it had been awarded on the project. It was powerless, of course, to give them additional work which it had not obtained and which, in fact, had been reserved by the very contractor through whom it had derived its own standing as an employer on the job." Id., at 685-686.
27
Since that time, as its decision in National Woodwork exemplifies, the Board has continued to interpret and apply s 8(b)(4)(B) to find an unfair labor practice, at least where the union employs a product boycott to claim work that the immediate employer is not in a position to award,13 and it has declined to find a violation where the employer has such power, even if awarding the work might cause him to terminate contractual relations with another employer.14 In the latter circumstances, the cease-doing-business consequences are merely incidental to primary activity, but not in the former where the union, if it is to obtain work, must intend to exert pressure on one or more other employers.
28
No legislative disagreement with the Board's interpretation of § 8(b)(4) was expressed in 1959 when Congress amended the section. On the contrary, in adding the primary-secondary proviso to the section, as the relevant reports clearly show, Congress intended merely to reflect the existing law. "This provision does not eliminate, restrict, or modify the limitations on picketing at the site of a primary labor dispute that are in existing law." H.R.Conf.Rep. No. 1147, 86th Cong., 1st Sess., 38 (1959), 1 Leg.Hist. 942, U.S.Code Cong. & Admin.News 1959, p. 2510.
29
Furthermore, the Courts of Appeals regularly sustained the relevant Board interpretations of § 8(b)(4), and we did not question the Board's approach in National Woodwork, let alone overrule it sub silentio. It is true that since our decision in that case some Courts of Appeals, like the Court of Appeals for the District of Columbia Circuit, have concluded that the Board's interpretation of the statute is in error.15 The Board's reading and application of the statute involved in this case, however, are long established, have remained undisturbed by Congress, and fall well within that category of situations in which the courts should defer to the agency's understanding of the statute which it administers. See Bayside Enterprises v. NLRB, 429 U.S. 298, 303-304, 97 S.Ct. 576, 580-581, 50 L.Ed.2d 494 (1977); NLRB v. Boeing Co., 412 U.S. 67, 75, 93 S.Ct. 1952, 1957, 36 L.Ed.2d 752 (1973); NLRB v. United Insurance Co. of America, 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Sand Door, 356 U.S., at 107, 78 S.Ct., at 1020.
IV
30
Wholly apart from its determination that the union's conduct was justified as a measure to enforce its collective-bargaining contract and that the Board applied an incorrect standard for determining liability, the Court of Appeals held that since there was "no substantial evidence . . . in this record that the union's purpose was also 'to satisfy union objectives elsewhere,' the Board's decision holding the union guilty of a Section 8(b)(4)(B) violation may not stand." 172 U.S.App.D.C., at 244, 521 F.2d, at 904. We disagree.
31
That there existed inducement and coercion within the meaning of § 8(b)(4) is not disputed. The issue is whether "an object" of the inducement and the coercion was to cause the cease-doing-business consequences prohibited by § 8(b)(4), the resolution of which in turn depends on whether the product boycott was "addressed to the labor relations of (Hudik) . . . vis-a-vis his own employees," National Woodwork, 386 U.S., at 645, 87 S.Ct., at 1268, or whether the union's conduct was "tactically calculated to satisfy (its) objectives elsewhere," id., at 644, 87 S.Ct., at 1268.16
32
There is ample support in the record for the Board's resolution of this question. The union sought to enforce its contract with Hudik by a jobsite product boycott by which the steamfitters asserted their rights to the cutting and threading work on the Norwegian Home project. It is uncontrovertible that the work at this site could not be secured by pressure on Hudik alone and that the union's work objectives could not be obtained without exerting pressure on Austin as well. That the union may also have been seeking to enforce its contract and to convince Hudik that it should bid on no more jobs were prepiped units were specified does not alter the fact that the union refused to install the Slant/Fin units and asserted that the piping work on the Norwegian Home job belonged to its members.17 It was not error for the Board to conclude that the union's objectives were not confined to the employment relationship with Hudik but included the object of influencing Austin in a manner prohibited by § 8(b)(4)(B).18
33
The Court of Appeals was of the view that other inferences from the facts were possible. The court, for example, could "clearly see that it was possible for Hudik-Ross to settle the labor dispute which it had created. The record is void of any suggestion that Hudik-Ross attempted to negotiate a compromise with the union under which the union would have agreed to install the climate control units in exchange for extra pay or other special benefits." 172 U.S.App.D.C., at 239, 521 F.2d, at 899. How this observation impugns the Board's finding with respect to the union's object is not clear. The union simply refused to handle the Slant/Fin units and asserted that under the contract the cutting and threading work belonged to them. The commonsense inference from these facts is that the product boycott was in part aimed at securing the cutting and threading work at the Norwegian Home job, which could only be obtained by exerting pressure on Austin.
34
The statutory standard under which the Court of Appeals was obliged to review this case was not whether the Court of Appeals would have arrived at the same result as the Board did, but whether the Board's findings were "supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e). See NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956); Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947); Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). It appears to us that in reweighing the facts and setting aside the Board's order, the Court of Appeals improperly substituted its own views of the facts for those of the Board.
The judgment of the Court of Appeals is
35
Reversed.
36
Mr. Justice BRENNAN, with whom Mr. Justice STEWART (except for Part V) and Mr. Justice MARSHALL join, dissenting.
37
I dissent. Today's holding that union members exert secondary pressure in violation of § 8(b)(4)(B) of the National Labor Relations Act by striking their own employer to protest his conceded violation of a lawful work-preservation provision in the parties' collective-bargaining agreement is patently precluded by National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967).
38
* Briefly to summarize the facts detailed in the Court's opinion, the collective-bargaining agreement between respondent union and Hudik-Ross Co. (Hudik), a heating and air-conditioning contractor, included a provision that Hudik's employees represented by the union would cut and thread the internal piping in the climate-control units installed by Hudik. This is concededly work traditionally performed by them. Hudik, however, on obtaining a subcontract from the Austin Co. to install climate-control units, agreed with Austin to install prefabricated units manufactured by Slant/Fin Corp., whose employees had cut and threaded the internal piping before the units were delivered to the jobsite. The union thereupon informed both Hudik and Austin that, because of Hudik's breach of the collective-bargaining agreement, its members would not install the units.
39
The National Labor Relations Board concluded that the union's refusal to install the units constituted "prohibited pressure on Hudik with an object of either forcing a change in Austin's manner of doing business or forcing Hudik to terminate its subcontract with Austin," and was therefore secondary pressure prohibited by § 8(b)(4)(B). Enterprise Assn. of Pipefitters, 204 N.L.R.B. 760 (1973) (as amended by order of Aug. 30, 1973). The Board conceded that the refusal "was based on a valid work preservation clause in the agreement with Hudik . . . and was for the purpose of preserving work (the union's members) had traditionally performed," ibid., but found nevertheless that the pressure was secondary because the union's primary dispute was necessarily with Austin, since Austin, and not Hudik, was in a position to control the assignment of the internal piping work, and therefore that Hudik, lacking such control, was a mere neutral in the dispute. The Court of Appeals for the District of Columbia Circuit, sitting en banc, rejected that analysis, 172 U.S.App.D.C. 225, 521 F.2d 885 (1975), but the Court adopts it.
II
40
The Court's result cannot be squared with National Woodwork Mfrs. Assn. v. NLRB, supra, whose totality-of-the-circumstances test the Court purports to apply. Ante, at 524. That case and this are virtually indistinguishable in relevant respects. The contractor in National Woodwork ordered precut and prefitted doors in violation of a collective-bargaining provision that doors would be cut and fitted by its own employees at the jobsite. When the workers refused to hang the doors, charges were filed alleging that the initial agreement violated § 8(e) of the NLRA as an agreement "whereby (the) employer . . . agrees to cease or refrain from handling . . . any of the products of any other employer," and that union pressure to enforce it violated § 8(b)(4) (B), as pressure intended to force the employer "to cease using . . . the product of any other . . . manufacturer. . . . "1
41
The Court had no difficulty in rejecting this overliteral interpretation of the Act. The legislative history of the relevant sections, read in the context of the evolution of national labor policy, demonstrated that the Taft-Hartley prohibition of secondary boycotts, as refined by the Landrum-Griffin Amendments, had adopted the traditional distinction between primary and secondary activity, prohibiting the latter and permitting the former:
42
"Congress, in enacting § 8(b)(4)(A) of the Act, returned to the regime of Duplex Printing Press Co. (v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349 (1921),) and Bedford Cut Stone Co. (v. Journeyman Stone Cutters' Assn., 274 U.S. 37, 47 S.Ct. 522, 71 L.Ed. 916 (1927),) and barred as a secondary boycott union activity directed against a neutral employer, including the immediate employer when in fact the activity directed against him was carried on for its effect elsewhere." 386 U.S., at 632, 87 S.Ct., at 1262.
43
While "(t)his will not always be a simple test to apply," id., at 645, 87 S.Ct., at 1269, it is the test that Congress intended, and it has deep roots in the history of American labor policy.
44
National Woodwork exemplifies application of the test in precisely the factual context of the instant case: a dispute over the application of a negotiated work-preservation rule to the use of prefabricated materials in the construction industry. The crux of National Woodwork is the following passage:
45
"The determination whether the 'will not handle' sentence of Rule 17 and its enforcement violated § 8(e) and § 8(b)(4)(B) cannot be made without an inquiry into whether, under all the surrounding circumstances, the Union's objective was preservation of work for Frouge's employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere. Were the latter the case, Frouge, the boycotting employer, would be a neutral bystander, and the agreement or boycott would, within the intent of Congress, become secondary. There need not be an actual dispute with the boycotted employer, here the door manufacturer, for the activity to fall within this category, so long as the tactical object of the agreement and its maintenance is that employer, or benefits to other than the boycotting employees or other employees of the primary employer thus making the agreement or boycott secondary in its aim. The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a -vis his own employees." Id., at 644-645, 87 S.Ct., at 1268 (footnotes omitted).
46
Two principles follow from this passage. First, §§ 8(b)(4)(B) and 8(e) prohibit only conduct which is secondary, as that term has generally been understood in American labor law. If the purpose of a contract provision, or of economic pressure on an employer, is to secure benefits for that employer's own employees, it is primary; if the object is to affect the policies of some other employer toward his employees, the contract or its enforcement is secondary. Second, work preservation is necessarily a primary goal. Pressure undertaken in order to preserve work traditionally performed by unit members aims at benefits for those members, and centers on a conflict between the employees and their employer, which, although it has secondary effects on other employers, as does the use of almost any economic weapon in a labor dispute, can only be regarded as primary. Thus, if a contract clause is intended to preserve work, its objective, and the objective of pressure to enforce it, is primary, and therefore legitimate. Only if examination of "all the surrounding circumstances" indicated that the purpose of the clause is not work preservation, but rather "to satisfy union objectives elsewhere," would the provision violate § 8(e) and its enforcement by economic pressure violate § 8(b)(4)(B).
III
47
The Court's acknowledgment that these principles must control the result here rings hollow in the face of its conclusion. For here, as in National Woodwork, the Board found that the union's actions were taken "for the purpose of preserving work (its members) had traditionally performed." 204 N.L.R.B., at 760. Cf. 386 U.S., at 645-646, 87 S.Ct., at 1268-1269. It defies reality to deny that the union's principal dispute was with Hudik, the immediate employer of its members. It was Hudik which had acceded to the union's demand for the work-preservation clause particularly desired by its employees for their own protection. And it was Hudik which breached that clause. Nothing whatever in the record even remotely suggests that the union had any quarrel with Slant/Fin or Austin. Those companies were simply the vehicles used by Hudik to effect the breach which created the primary dispute between it and its own employees and their union. Nor is there the slightest basis for a suggestion that the true purpose of the work-preservation clause or the pressure applied to enforce it was to benefit employees "other than the boycotting employees or other employees of (Hudik)." Id., at 645, 87 S.Ct., at 1268. Rather, the Board found that the purpose of the job action was "preserving work (the boycotting employees) had traditionally performed" for Hudik.2 Since the purpose of the union's pressure was, by the Board's own finding, work preservation, and since National Woodwork holds that work preservation is a legitimate primary objective, the only possible conclusion on this record is that the pressure here was primary, and not prohibited by § 8(b)(4)(B).
48
Nor is National Woodwork distinguishable, as contended, because Austin, and not Hudik, had the "right to control" the assignment of the work of cutting and threading the internal piping. Any conclusion from this that the union's pressure must have been directed at Austin and not Hudik is totally inconsistent with the premises and conclusion of National Woodwork.3 First, Hudik was by no means a "neutral" in the sense contemplated by Congress as warranting or requiring protection. See 386 U.S., at 624-628, 87 S.Ct., at 1257-1260. Hudik made the agreement with its employees to satisfy their deep concern for work preservation. But in defiance of its obligations voluntarily assumed, Hudik accepted a subcontract knowing that it disabled it from keeping the bargain. It completely escapes me how Hudik can be said to be the neutral, and Austin the target, on those facts, particularly in face of the Board's finding that the work-preservation clause was primary and not prohibited by § 8(e). Thus had the union been forced to strike Hudik to get the agreement, the strike would clearly also have been primary and not prohibited by § 8(b)(4)(B). How, then, could Hudik become a neutral by violating the clause after agreeing to it? The Board did not find that the union's insistence upon compliance with the legitimate work-preservation agreement was a pretext to apply pressure against Austin in some unrelated dispute; on the contrary, the Board found that the purpose of the job action, as well as of the original agreement, was work preservation. It is simply impossible to conclude that anyone but Hudik was the target of that pressure.
49
Second, it is not true that Hudik was a neutral because it was powerless to deal with the union demands. As the Court of Appeals pointed out, if the union's purpose is truly work preservation for the benefit of its own members, it presumably would be willing to negotiate some substitute for full compliance, such as premium pay, to replace the lost work. Nothing in this record indicates that Hudik made any attempt to reach that or any other compromise solution, and there is no reason to think that the union would not have been satisfied with such a result.4 Moreover, in the long run, only Hudik could deal with the union demands, for it alone could decide to comply with the collective-bargaining agreement in the future. The union could certainly have reasoned that after Hudik knowingly breached its contract even if at that time Hudik had no power to undo the breach union pressure was necessary to deter Hudik from repeating its breach of the work-preservation agreement in the future.
50
Third, there is no basis in the record for the conclusion that Austin should be regarded as the "real" target of the union's pressure. The union had no quarrel with Austin, as far as the record shows, except for the artificial one erected by today's unpersuasive reasoning based upon the subcontract to Hudik. There is no indication, for example, that the union represented any employees of Austin, or even that it was engaged in any general effort to prevent Austin from specifying installation of prefabricated climate-control units in all its projects. Further, nothing in the record suggests that the union's reaction would have been different had someone other than Austin made the decision to use prefabricated units; whether Hudik accomplished the wrong to its employees by contracting with Austin, or simply by independently ordering prefabricated units, could make no difference to the injured employees. Either way, their objective, as the Board found, was work preservation, and their grievance was with Hudik, and no one else.
51
The Court is wholly in error in treating the case as one of a factual finding by the Board to be treated with deference by us that Austin was the target of the union's pressure. The facts are not in dispute. The Board found that the reason for the union's refusal to install the prefabricated units was work preservation, but nevertheless concluded that this refusal was prohibited secondary pressure because Austin, not Hudik, had the "right to control" the disputed work, and because the union notified Austin, as well as Hudik, of its actions. "Right to control" may, in some circumstances, be relevant to the "inquiry into whether, under all the surrounding circumstances, the (u) nion's objective was preservation of work for (the pressured employer's) employees, or whether the (union pressure was) tactically calculated to satisfy union objectives elsewhere." National Woodwork, 386 U.S., at 644, 87 S.Ct., at 1268. But once the Board determined that the union's object was preservation of work its members had traditionally performed for Hudik, its factfinding task was completed. The Board concluded that despite this finding, Austin's "right to control" the disputed work required the conclusion that Austin was the union's target. This was an error of law, not a factual finding.5
IV
52
The Court maintains that the collective-bargaining agreement between Enterprise and Hudik is irrelevant to the determination of whether the union exerted primary or secondary pressure, relying on Carpenters v. NLRB, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958) (Sand Door ). With all respect, this totally misapprehends the relevance of the agreement to the issue before us, and misapplies Sand Door.
53
In Sand Door, the union ordered its members not to handle doors ordered by their employer from a nonunion manufacturer. The manufacturer charged secondary pressure aimed at it, and the union defended on the ground that the strike was its response to the employer-contractor's breach of a provision in their collective-bargaining agreement that "workmen shall not be required to handle non-union material," and therefore primary pressure. The Court held that, although the collective-bargaining provision was not illegal,6 pressure to enforce it was prohibited secondary pressure.7
54
Thus, Sand Door holds that pressure to enforce a secondary boycott clause remains secondary, despite the then legality of the clause itself; it is not authority that union pressure to enforce a concededly primary work-preservation clause (which, since the enactment of § 8(e), is legal only because it is primary), is anything but primary pressure.8 The union here does not argue, as in Sand Door, that pressure otherwise secondary is magically transformed into primary pressure by an employer's prior agreement to support a secondary boycott. Rather, §§ 8(b)(4) and 8(e) are "to be taken pari passu," National Woodwork, supra, 386 U.S., at 649, 87 S.Ct., at 1270. (Harlan, J., concurring), so that pressure to enforce an employer to honor a clause of a collective-bargaining agreement admittedly primary, because intended to preserve work traditionally performed by unit members, is also primary.9 In short, the agreement in this case, as the Board found, was for a primary purpose; pressure brought to compel Hudik to agree to it would have been primary; and pressure brought to enforce it when Hudik breached it, whether by ordering prefabricated units himself, as in National Woodwork, or by entering a contract that required it to breach it, was no less primary.
V*
55
Technological change has threatened the stability of jobs in a number of industries. Workers in those industries are understandably concerned about the possibility that new technological advances or increased reliance on prefabricated materials will render their skills superfluous, and eliminate their jobs, and have sought reassurance against those fears from their employers through collective bargaining. It might be argued that in the long run the national interest is better served by permitting technological change to proceed at its own pace, unhampered by the demands of labor, and that the problems of workers threatened with unemployment by such "progress" can be better dealt with by some other method than collective bargaining. But it is for Congress, not the Court, to decide how this problem is best solved. National Woodwork, 386 U.S., at 644, 87 S.Ct., at 1268; id., at 649-650, 87 S.Ct., at 1270-1271 (Harlan, J., concurring). And the Court has consistently recognized that the national labor policy adopted by Congress is for "management and labor voluntarily to negotiate for solutions to these significant and difficult problems." Id., at 640, 87 S.Ct., at 1266. See also Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). Today's decision undermines this policy by permitting an employer which has voluntarily agreed to a work-preservation clause to subvert that agreement by "assigning to another party the rights (it) guaranteed to (its) own employees." Note, Secondary Boycotts and Work Preservation, 77 Yale L.J. 1401, 1417 (1968). This is surely a serious setback for national labor policy, and hardly conducive to labor peace.
56
Mr. Justice STEWART, dissenting.
57
I disagreed with the Court in National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 650, 87 S.Ct. 1250, 1271, 18 L.Ed.2d 357. Until that decision is overruled, however, it stands as an authoritative construction of § 8(b)(4)(B) of the National Labor Relations Act. For the reasons stated in Mr. Justice BRENNAN'S dissenting opinion, I agree that the Court's decision today is "patently precluded" by the National Woodwork case. On that basis I join all but Part V of Mr. Justice BRENNAN'S dissenting opinion.
1
Section 8(b) of the National Labor Relations Act, as set forth in 29 U.S.C. § 158(b), provides in relevant part:
"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
"(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing."
2
The pre- and post-1959 developments are fully canvassed in National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967).
3
The facts here stated are taken from the findings made by the Administrative Law Judge and adopted by the Board. Enterprise Assn. of Steam Pipefitters, 204 N.L.R.B. 760 (1973).
4
Rule IX provided in relevant part:
"Radiator branches, convector branches and coil connections shall be cut and threaded by hand on the job in accordance with Rule V." App. 89.
Rule V provided:
"MEN TO WORK IN UNITS OF TWO
"All work to be performed within the jurisdiction of Enterprise Association must be performed by journeymen steamfitters or apprentices working in units of two, one of whom must be a steamfitter. A unit shall be composed of:
"A. Steamfitter with a steamfitter, or
"B. Steamfitter with an apprentice." Id., at 87-88.
5
For a discussion of the decisions of the Courts of Appeals on the issues presented in this case see n. 15, infra.
6
Section 8(b)(4)(A) was renumbered as § 8(b)(4)(B) in 1959. As we shall see, no substantive changes made by the 1959 amendments had any effect on the rule established in Sand Door.
7
Part of the same contractual rule provided that " '(n)o employee shall work on any job on which cabinet work, fixtures, millwork, sash, doors, trim or other detailed millwork is used unless the same is Union-made and bears the Union Label of the United Brotherhood of Carpenters and Joiners of America.' " National Woodwork, 386 U.S., at 615 n. 2, 87 S.Ct., at 1253 n. 2. The Board found that this sentence violated § 8(e). This finding, consistent with prevailing law, was not challenged by the union. See, e. g., NLRB v. Amalgamated Lithographers of America, 309 F.2d 31, 35-36 (C.A.9 1962), cert. denied, 372 U.S. 943, 83 S.Ct. 936, 9 L.Ed.2d 968 (1963); Employing Lithographers of Greater Miami v. N.L.R.B., 301 F.2d 20, 29-30 (C.A.5 1962).
8
The validity of the will-not-handle provision in this case was not challenged by the charging party, and the Board referred to it as a valid provision. Because the scope of the prohibitions in §§ 8(b)(4)(B) and 8(e) are essentially identical, except where the proscriptions in § 8(e) are limited by the provisos in that section, the Court of Appeals regarded as anomalous that a valid provision in a collective-bargaining contract could not be enforced through economic pressure exerted by the union. This conclusion ignores the substance of our decision in Sand Door. Even though a work-preservation provision may be valid in its intendment and valid in its application in other contexts, efforts to apply the provision so as to influence someone other than the immediate employer are prohibited by § 8(b)(4)(B). See George Koch Sons, Inc. v. NLRB, 490 F.2d 323, 327 (C.A.4 1973).
Nor does the Board's decision undermine the collective-bargaining process as the Court of Appeals suggests. In appropriate circumstances, the Board has not found the lack of control to be determinative, Painters Dist. Council No. 20 (Uni-Coat), 185 N.L.R.B. 930 (1970), and the Board has declared its intention to continue to eschew a mechanical application of its control test in order to ascertain whether the struck employer is truly an unoffending employer. See Local 438, United Pipe Fitters (George Koch Sons, Inc.), 201 N.L.R.B. 59, 64 (1973).
9
"(A)n administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained." SEC v. Chenery Corp., 318 U. S. 80, 95, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943). This rule has not been disturbed. See FPC v. Texaco, Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 2326, 41 L.Ed.2d 141 (1974); FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 249, 92 S.Ct. 898, 907, 31 L.Ed.2d 170 (1972); K. Davis, Administrative Law Treatise § 16.01, p. 397 (Supp.1976). When an administrative agency has made an error of law, the duty of the Court is to "correct the error of law committed by that body, and, after doing so to remand the case to the (agency) so as to afford it the opportunity of examining the evidence and finding the facts as required by law." ICC v. Clyde S.S. Co., 181 U.S. 29, 32-33, 21 S.Ct. 512, 514, 45 L.Ed. 729 (1901).
10
204 N.L.R.B., at 764. The Administrative Law Judge concluded that Austin and Slant/Fin were primary employers. The Board, while adopting the remainder of the Administrative Law Judge's report, did not reach this question.
11
The Board addressed the question in George Koch Sons, Inc., supra. The Board recognized that there had been some ambiguity on this issue in earlier decisions.
"Specifically, of late, the Board has characterized its approach simply in terms of a right-of-control test. The test as stated would seem to imply that the Board looked solely at the pressured employer's 'contract right to control' the work at issue at the time of the pressure to determine whether that pressure was primary or secondary. In fact, this is not now the Board's approach nor was it ever.
"Rather, the Board has always proceeded with an analysis of (1) whether under all the surrounding circumstances the union's objective was work preservation and then (2) whether the pressures exerted were directed at the right person, i.e., at the primary in the dispute. . . . In following this approach, however, our analysis has not (been) nor will it ever be a mechanical one, and, in addition to determining, under all the surrounding circumstances, whether the union's objective is truly work preservation, we have studied and shall continue to study not only the situation the pressured employer finds himself in but also how he came to be in that situation. And if we find that the employer is not truly an 'unoffending employer' who merits the Act's protections, we shall find no violation in a union's pressures such as occurred here, even though a purely mechanical or surface look at the case might present an appearance of a parallel situation." 201 N.L.R.B., at 64 (footnotes omitted).
12
The Board also adopted the Administrative Law Judge's discussion of the economic context in which the dispute arose.
The Administrative Law Judge was of the view that union pressure on Austin and other contractors who preferred factory-piped units could effectively foreclose Slant/Fin and similar producers from the market. The Board did not disturb the Administrative Law Judge's findings:
"If prepaid units cannot be installed in the large commercial, public, and industrial buildings in the New York area or in other areas effectively organized by the Union and other building trades unions, the manufacture will be materially affected and Austin and other engineers and general contractors will not specify their purchase and use in buildings." 204 N.L.R.B., at 764.
"In my opinion, it is an appropriate subject of official notice that in New York City, and probably in all or most of the major cities in this country, the building and construction industry is unionized, certainly with respect to major industrial, commercial, and public construction. Unionized in this context means that craft unions affiliated with the AFL-CIO represent and have contracts for the employees who work on such projects and, in fact, the unions are the source of the labor supply and furnish the employees to the employer-contractors. The strategic position of the unions in the industry is confirmed by the fact that governmental efforts to increase the number of minority employees in the industry are concentrated on the unions and not on the employers. In most industries, if it is desired to increase the number of minority employees, governmental pressure is effectively directed to the employers. But in the construction industry it is the unions that control the labor supply and if the union steamfitter employees of Hudik on the Norwegian job refuse to work, other steamfitters will not be available to Hudik or to anyone else to perform work on the job." Id., at 764 n. 10.
13
See, e. g., George Koch Sons, Inc., supra; International Assn. of Heat & Frost Insulators, Local 12, 193 N.L.R.B. 40 (1971); Enterprise Assn., Local 638, 183 N.L.R.B. 516 (1970); Local 742, Carpenters, 178 N.L.R.B. 351 (1969); Local 636, Plumbers & Pipefitters, 177 N.L.R.B. 189 (1969); Pipe Fitters Local No. 120, 168 N.L.R.B. 991 (1967); International Assn. of Heat & Frost Insulators, Local 53, 149 N.L.R.B. 1075 (1964); Ohio Valley Carpenters Dist. Council, 144 N.L.R.B. 91 (1963); International Longshoremen's Assn., 137 N.L.R.B. 1178 (1962); Local 5, United Assn. of Journeymen, 137 N.L.R.B. 828 (1962); Enterprise Assn., Local 638, 124 N.L.R.B. 521 (1959); Local 636, United Assn. of Journeymen, 123 N.L.R.B. 225 (1959).
14
See, e. g., Pipe Fitters Local No. 120, supra, at 992; Metropolitan Dist. Council of Phila., 149 N.L.R.B. 646, 659 n. 21 (1964) (National Woodwork).
15
Prior to this Court's decision in National Woodwork, the Courts of Appeals had uniformly held that it was a violation of § 8(b)(4)(B) for a union to use economic pressures to obtain work that was not within the struck employer's power to award. See Ohio Valley Carpenters Dist. Council v. NLRB, 339 F.2d 142 (C.A.6 1964); NLRB v. Int'l Longshoremen's Assn., 331 F.2d 712 (C.A.3 1964); Local No. 5, United Assn. of Journeymen v. NLRB, 116 U.S.App.D.C. 100, 321 F.2d 366, cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1963); NLRB v. Enterprise Assn., 285 F.2d 642 (C.A.2 1960); Local No. 636, United Assn. of Journeymen v. NLRB, 108 U.S.App.D.C. 24, 278 F.2d 858 (1960). Generally, the Courts of Appeals did not treat the Board's control test as a per se rule, reasoning instead that the absence of the right to control the work sought is strong evidence that the objective of the economic pressure being applied by the union is to affect someone other than the struck employer.
In many of the pre-National Woodwork cases the unions argued that their activity was primary on the ground that they were merely enforcing valid work-preservation agreements. The Courts of Appeals uniformly rejected this argument for a variety of reasons. Two of the pre-National Woodwork cases flatly held that the existence of a valid work-preservation agreement cannot validate conduct that otherwise would be unlawful under § 8(b)(4)(B). Ohio Valley Carpenters, supra, 339 F.2d, at 145; Local No. 5, supra, 321 F.2d, at 369-370.
Since this Court's decision in National Woodwork, six Circuits have addressed the control issue. The Fourth Circuit in a well-reasoned opinion has expressly sustained the Board's control test. George Koch Sons, Inc. v. NLRB, 490 F.2d 323 (1973). The Ninth Circuit has done the same. See Associated General Contractors of California v. NLRB, 514 F.2d 433 (1975). But see Western Monolithics Concrete Products v. NLRB, 446 F.2d 522 (C.A.9 1971).
The Third, Eighth, and District of Columbia Circuits have rejected the Board's control theory. In addition to the District of Columbia Circuit's opinion in the present case, see Local No. 636, United Assn. of Journeymen v. NLRB, 139 U.S.App.D.C. 165, 430 F.2d 906 (1970); American Boiler Mfrs. Assn. v. NLRB, 404 F.2d 556 (C.A.8 1968); NLRB v. Local 164, Int'l Brotherhood of Electrical Workers, 388 F.2d 105 (C.A.3 1968). The First Circuit has said the same thing in dictum. Beacon Castle Square Bldg. Corp. v. NLRB, 406 F.2d 188 (1969).
16
The dissenters now assert a different definition of what constitutes prohibited secondary activity:
"If the purpose of a contract provision, or of economic pressure on an employer, is to secure benefits for that employer's own employees, it is primary; if the object is to affect the policies of some other employer
toward his employees, the contract or its enforcement is secondary." Post, at 535.
National Woodwork did not, however, adopt this standard for applying the proscriptions of § 8(b)(4)(B). The distinction between primary and secondary activity does not always turn on which group of employees the union seeks to benefit. There are circumstances under which the union's conduct is secondary when one of its purposes is to influence directly the conduct of an employer other than the struck employer. In these situations, a union's efforts to influence the conduct of the nonstruck employer are not rendered primary simply because it seeks to benefit the employees of the struck employer. National Woodwork itself embraced the view that the union's conduct would be secondary if its tactical object was to influence another employer:
"There need not be an actual dispute with the boycotted employer, here the door manufacturer, for the activity to fall within this category, so long as the tactical object of the agreement and its maintenance is that employer, or benefits to other than the boycotting employees or other employees of the primary employer thus making the agreement or boycott secondary in its aim." (Emphasis added.) 386 U.S., at 645, 87 S.Ct., at 1268.
Under the standard announced, we found no unfair labor practice in National Woodwork. Frouge, the struck employer, was faced with the choice of either giving the cutting and fitting work to its own employees or giving it to the door manufacturer. Cf. Fibreboard Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). The Court sustained the Board's finding that the union's sole object was to influence Frouge to give the work to its own employees. The union thus had no object of influencing the door manufacturer, even though any influence that the union had on Frouge would have had an incidental effect on persons with whom Frouge had commercial dealings. Cf. NLRB v. Operating Engineers, 400 U.S. 297, 304, 91 S.Ct. 402, 407, 27 L.Ed.2d 398 (1971) ("Some disruption of business relationships is the necessary consequence of the purest form of primary activity").
The National Woodwork opinion also noted that the Court then had no occasion "to decide the questions which might arise where the workers carry on a boycott to reach out to monopolize jobs or acquire new job tasks." 386 U.S., at 630-631, 87 S.Ct., at 1261. That reservation was apparently meaningless, for under the theory of the dissent, seemingly derived from National Woodwork itself, striking workers may legally demand that their
employer cease doing business with another company even if the union's object is to obtain new work so long as that work is for the benefit of the striking employees. If, for example, Hudik had in the past used prepiped units without opposition from the union, and the union had demanded that Hudik not fulfill its contract with Austin on the Norwegian Home job all for the benefit of Hudik employees it would appear that the dissenters' approach would exonerate the union. Respondents take the same view. Tr. of Oral Arg. 22. We disagree, for the union's object would necessarily be to force Hudik to cease doing business with Austin, not to preserve, but to aggrandize, its own position and that of its members. Such activity is squarely within the statute.
Here, of course, the union sought to acquire work that it never had and that its employer had no power to give it, namely, the piping work on units specified by any contractor or developer who prefers and uses prepiped units. By seeking the work at the Norwegian Home, the union's tactical objects necessarily included influencing Austin; this conduct falls squarely within the statement of National Woodwork that a union's activity is secondary if its tactical object is to influence the boycotted employer.
17
"It is not necessary to find that the sole object of the strike" was secondary so long as one of the union's objectives was to influence another employer by inducing the struck employer to cease doing business with that other employer. See NLRB v. Denver Bldg. Council, 341 U.S. 675, 689, 71 S.Ct. 943, 951, 95 L.Ed. 1284 (1951). See also Wilson v. Milk Drivers & Dairy Employees, Local 471, 491 F.2d 200, 203 (C.A.8 1974); Riverton Coal Co. v. United Mine Workers, 453 F.2d 1035, 1040 (C.A.6), cert. denied, 407 U.S. 915, 92 S.Ct. 2439, 32 L.Ed.2d 690 (1972); NLRB v. Milk Drivers & Dairy Employees, Local 584, 341 F.2d 29, 32 (C.A.2), cert. denied, 382 U.S. 816, 86 S.Ct. 39, 15 L.Ed.2d 64 (1965).
18
The dissenters assert that "(n)othing whatever in the record even remotely suggests that the union had any quarrel with Slant/Fin or Austin." Post, at 563 and 539-540. The Court has held, however, that there is no need for the Board to make such a finding in order to conclude that a § 8(b)(4)(B) violation has occurred. National Woodwork, 386 U.S., at 645, 87 S.Ct., at 1268, quoted at n. 16, supra.
1
Section 8(b)(4)(B) was added to the Act as § 8(b)(4)(A) by the Taft-Hartley Act of 1947, and amended and renumbered by the Landrum-Griffin Act of 1959. For the history of these provisions, see National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 619-644, 87 S.Ct. 1250, 1254-1268, 18 L.Ed.2d 357 (1967). The present text of § 8(b)(4)(B), in pertinent part, is set out in n. 1 of the Court's opinion, ante, at 509-510.
Section 8(e) was added to the Act in 1959. It provides, in pertinent part:
"It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void . . . ." 29 U.S.C. § 158(e) (1970 ed., Supp. V).
2
The Court argues, contrary to this finding, that the union's object was "to acquire work that it never had," because unit members had never done "the piping work on units specified by" a contractor who preferred prefabricated units. Ante, at 530 n. 16. The Board's finding that the union's aim was work preservation, rather than work acquisition, disposes of this argument. At any rate, striking workers in any work-preservation dispute have never before done the particular job at issue in the dispute, and are seeking to "acquire" work that has been assigned to other workers, but that is of a type that they have traditionally performed for their employer. As the majority correctly points out, ante, at 529 n. 16, the Court in National Woodwork had no occasion to decide what implications its analysis might have when a union seeks to acquire tasks not traditionally performed by its members, 386 U.S., at 630-631, 87 S.Ct., at 1260-1261, and since this is not such a situation, I have no occasion to reach that question here.
3
That National Woodwork required rejection of the "right to control" doctrine was quickly realized by the commentators.
"The modern primary-secondary analysis (of National Woodwork ) requires the complete abandonment of the present 'right to control' rule. The unit has bargained for its rights and signed a contract with its employer, who happens to be a subcontractor. These two are without doubt the primary parties. The general contractor is removed from this direct confrontation, enters into the picture after the agreement has been made, receives his authority over job placement of the complaining unit derivatively from the subcontractor, and is fully aware of the consequences of such work-preservation agreements. The effects upon the general contractor of any strike in this situation are thus ancillary to a primary dispute with the immediate employer vindicating bargaining unit concerns. This result is required if the right to strike is to be assured to the subcontractor's employees. . . . (T)he subcontractor is merely estopped from assigning to another party the rights he guaranteed to his own employees." Note, Secondary Boycotts and Work Preservation, 77 Yale L.J. 1401, 1416-1417 (1968). (Footnote omitted.)
4
The Court purports to fail to see "(h)ow this observation impugns the Board's finding with respect to the union's object." Ante, at 531. That "finding" is based exclusively on the inference that because only Austin could satisfy the union's demands, Austin must have been the real target of the union pressure. But since there were means by which Hudik could have satisfied the union's protest, and it did not attempt to take advantage of them, the premise of the Board's argument falls. Cf. Local 742, United Brotherhood of Carpenters v. NLRB, 174 U.S.App.D.C. 456, 467-468, 533 F.2d 683, 694-695 (1976), cert. pending, No. 75-1706.
5
It is true that a possible result of successful work-preservation pressure by the union might be "forcing a change in Austin's manner of doing business or forcing Hudik to terminate its subcontract with Austin." 204 N.L.R.B., at 760. But the same was true in National Woodwork. There, had the union succeeded in enforcing its work-preservation agreement, the contractor would likely have terminated its contract with the manufacturer of precut and prefitted doors. Such secondary effects are common in labor disputes, but do not compel the conclusion that they were the real object of the union, particularly where, as here, alternative outcomes might also have satisfied the union. See supra, at 538-539, and n. 4.
6
Such "hot cargo" clauses, then legal, are now prohibited by § 8(e). See n. 1, supra.
7
Sand Door is entirely consistent with National Woodwork, for the object of the pressure on the employer-contractor in Sand Door was "to satisfy union objectives elsewhere," specifically, to change the labor policy of the manufacturer.
8
As one commentator pointed out more than 10 years ago:
"Of course Sand Door holds that a valid contract is not a defense to a secondary boycott. But it would be a serious misreading of that case, and indeed of the entire statutory evolution, to apply that notion in the context of (work-preservation agreements). Prior to 1959, a contract was lawful whether primary or secondary; Sand Door spoke only to the effect of the latter type of agreement on section 8(b)(4). Section 8(e) now generally prohibits the mere execution of such agreements. But if a contract is 'primary' i. e., not within section 8(e) at all it is equally primary to enforce it by economic pressure on the contracting employer." Lesnick, Job Security and Secondary Boycotts: The Reach of NLRA §§ 8(b)(4) and 8(e), 113 U.Pa.L.Rev. 1000, 1040 (1965). (Footnotes omitted.)
9
Thus, while it is true that "a valid contract is not a defense to a secondary boycott," Lesnick, supra, n. 8, the Court of Appeals was correct that "an employer who is struck by his own employees for the purpose of requiring him to do what he has lawfully contracted to do to benefit those employees can (n)ever be considered a neutral bystander in a dispute not his own." 172 U.S.App.D.C., at 243, 521 F.2d, at 903. (Emphasis added.) Of course, this statement presumes that enforcement of the work-preservation agreement is the true object of the union pressure, as the Board found was the case here, and not a mere pretext. If it were found, for example, that the union only enforced the agreement against prefabricated products manufactured by nonunion companies, and not against others, the object of the pressure would not be primary (enforcing the work-preservation agreement), but secondary (influencing the labor policy of the manufacturer). Cf. National Woodwork, 386 U.S., at 646, 87 S.Ct., at 1269.
*
Mr. Justice STEWART does not concur in this Part.
| 67
|
429 U.S. 589
97 S.Ct. 869
51 L.Ed.2d 64
Robert P. WHALEN, as Commissioner of Health of New York, Appellant,v.Richard ROE, an infant by Robert Roe, his parent, et al.
No. 75-839.
Argued Oct. 13, 1976.
Decided Feb. 22, 1977.
Syllabus
Responding to a concern that drugs were being diverted into unlawful channels, the New York Legislature in 1972 enacted a statutory scheme to correct defects in the previous law. The 1972 statute classifies potentially harmful drugs and provides that prescriptions for the category embracing the most dangerous legitimate drugs (Schedule II) be prepared on an official form. One copy of the form, which requires identification of the prescribing physician, dispensing pharmacy, drug and dosage, and the patient's name, address, and age, must be filed with the State Health Department, where pertinent data are recorded on tapes for computer processing. All forms are retained for a five-year period under a system to safeguard their security, and are thereafter destroyed. Public disclosure of the patient's identity is prohibited, and access to the files is confined to a limited number of health department and investigatory personnel. Appellees, including a group of patients regularly receiving Schedule II drugs and prescribing doctors, brought this action challenging the constitutionality of the Schedule II patient-identification requirements. Holding that "the doctor-patient relationship is one of the zones of privacy accorded constitutional protection" and that the Act's patient-identification provisions invaded that zone with "a needlessly broad sweep," since appellant had been unable to demonstrate the need for those requirements, a three-judge District Court enjoined the enforcement of the challenged provisions. Held :
1. The patient-identification requirement is a reasonable exercise of the State's broad police powers, and the District Court's finding that the necessity for the requirement had not been proved is not a sufficient reason for holding the statute unconstitutional. Pp. 596-598.
2. Neither the immediate nor the threatened impact of the patient-identification requirement on either the reputation or the independence of patients for whom Schedule II drugs are medically indicated suffices to constitute an invasion of any right or liberty protected by the Fourteenth Amendment. Pp. 598-604.
(a) The possibility that a doctor or pharmacist may voluntarily reveal information on a prescription form, which existed under prior law, is unrelated to the computerized data bank. Pp. 600-601.
(b) There is no support in the record or in the experience of the two States that the New York program emulates for assuming that the statute's security provisions will be improperly administered. P. 601.
(c) The remote possibility that judicial supervision of the evidentiary use of particular items of stored information will not provide adequate protection against unwarranted disclosure is not a sufficient reason for invalidating the entire patient identification program. Pp. 601-602.
(d) Though it is argued that concern about disclosure may induce patients to refuse needed medication, the 1972 statute does not deprive the public of access to Schedule II drugs, as is clear from the fact that about 100,000 prescriptions for such drugs were filed each month before the District Court's injunction was entered. Pp. 602-603.
3. Appellee doctors' contention that the 1972 statute impairs their right to practice medicine free from unwarranted state interference is without merit, whether it refers to the statute's impact on their own procedures, which is no different from the impact of the prior statute, or refers to the patients' concern about disclosure that the Court has rejected (see 2(d), supra ). P. 604.
403 F.Supp. 931, reversed.
A. Seth Greenwald, New York City. for appellant.
Michael O. Lesch and by H. Miles Jaffe, New York City, for appellees.
Mr. Justice STEVENS delivered the opinion of the Court.
1
The constitutional question presented is whether the State of New York may record, in a centralized computer file, the names and addresses of all persons who have obtained, pursuant to a doctor's prescription, certain drugs for which there is both a lawful and an unlawful market.
2
The District Court enjoined enforcement of the portions of the New York State Controlled Substances Act of 19721 which require such recording on the ground that they violate appellees' constitutionally protected rights of privacy.2 We noted probable jurisdiction of the appeal by the Commissioner of Health, 424 U.S. 907, 96 S.Ct. 1100, 47 L.Ed.2d 310, and now reverse.3
3
Many drugs have both legitimate and illegitimate uses. In response to a concern that such drugs were being diverted into unlawful channels, in 1970 the New York Legislature created a special commission to evaluate the State's drug-control laws.4 The commission found the existing laws deficient in several respects. There was no effective way to prevent the use of stolen or revised prescriptions, to prevent unscrupulous pharmacists from repeatedly refilling prescriptions, to prevent users from obtaining prescriptions from more than one doctor, or to prevent doctors from over-prescribing, either by authorizing an excessive amount in one prescription or by giving one patient multiple prescriptions.5 In drafting new legislation to correct such defects, the commission consulted with enforcement officials in California and Illinois where central reporting systems were being used effectively.6
4
The new New York statute classified potentially harmful drugs in five schedules.7 Drugs, such as heroin, which are highly abused and have no recognized medical use, are in Schedule I; they cannot be prescribed. Schedules II through V include drugs which have a progressively lower potential for abuse but also have a recognized medical use. Our concern is limited to Schedule II which includes the most dangerous of the legitimate drugs.8
5
With an exception for emergencies, the Act requires that all prescriptions for Schedule II drugs be prepared by the physician in triplicate on an official form.9 The completed form identifies the prescribing physician; the dispensing pharmacy; the drug and dosage; and the name, address, and age of the patient. One copy of the form is retained by the physician, the second by the pharmacist, and the third is forwarded to the New York State Department of Health in Albany. A prescription made on an official form may not exceed a 30-day supply, and may not be refilled.10
6
The District Court found that about 100,000 Schedule II prescription forms are delivered to a receiving room at the Department of Health in Albany each month. They are sorted, coded, and logged and then taken to another room where the data on the forms is recorded on magnetic tapes for processing by a computer. Thereafter, the forms are returned to the receiving room to be retained in a vault for a five-year period and then destroyed as required by the statute.11 The receiving room is surrounded by a locked wire fence and protected by an alarm system. The computer tapes containing the prescription data are kept in a locked cabinet. When the tapes are used, the computer is run "off-line," which means that no terminal outside of the computer room can read or record any information. Public disclosure of the identity of patients is expressly prohibited by the statute and by a Department of Health regulation.12 Willful violation of these prohibitions is a crime punishable by up to one year in prison and a $2,000 fine.13 At the time of trial there were 17 Department of Health employees with access to the files; in addition, there were 24 investigators with authority to investigate cases of overdispensing which might be identified by the computer. Twenty months after the effective date of the Act, the computerized data had only been used in two investigations involving alleged overuse by specific patients.
7
A few days before the Act became effective, this litigation was commenced by a group of patients regularly receiving prescriptions for Schedule II drugs, by doctors who prescribe such drugs, and by two associations of physicians.14 After various preliminary proceedings,15 a three-judge District Court conducted a one-day trial. Appellees offered evidence tending to prove that persons in need of treatment with Schedule II drugs will from time to time decline such treatment because of their fear that the misuse of the computerized data will cause them to be stigmatized as "drug addicts."16
8
65 ¢s596¢sThe District Court held that "the doctor-patient relationship intrudes on one of the zones of privacy accorded constitutional protection" and that the patient-identification provisions of the Act invaded this zone with "a needlessly broad sweep," and enjoined enforcement of the provisions of the Act which deal with the reporting of patients' names and addresses.17
9
* The District Court found that the State had been unable to demonstrate the necessity for the patient-identification requirement on the basis of its experience during the first 20 months of administration of the new statute. There was a time when that alone would have provided a basis for invalidating the statute. Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, involved legislation making it a crime for a baker to permit his employees to work more than 60 hours in a week. In an opinion no longer regarded as authoritative, the Court held the statute unconstitutional as "an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty . . . ." Id., at 56, 25 S.Ct., at 543.
10
The holding in Lochner has been implicitly rejected many times.18 State legislation which has some effect on individual liberty or privacy may not be held unconstitutional simply because a court finds it unnecessary, in whole or in part.19 For we have frequently recognized that individual States have broad latitude in experimenting with possible solutions to problems of vital local concern.20
11
The New York statute challenged in this case represents a considered attempt to deal with such a problem. It is manifestly the product of an orderly and rational legislative decision. It was recommended by a specially appointed commission which held extensive hearings on the proposed legislation, and drew on experience with similar programs in other States. There surely was nothing unreasonable in the assumption that the patient-identification requirement might aid in the enforcement of laws designed to minimize the misuse of dangerous drugs. For the requirement could reasonably be expected to have a deterrent effect on potential violators21 as well as to aid in the detection or investigation of specific instances of apparent abuse. At the very least, it would seem clear that the State's vital interest in controlling the distribution of dangerous drugs would support a decision to experiment with new techniques for control.22 For if an experiment fails if in this case experience teaches that the patient-identification requirement results in the foolish expenditure of funds to acquire a mountain of useless information the legislative process remains available to terminate the unwise experiment. It follows that the legislature's enactment of the patient-identification requirement was a reasonable exercise of New York's broad police powers. The District Court's finding that the necessity for the requirement had not been proved is not, therefore, a sufficient reason for holding the statutory requirement unconstitutional.
II
12
Appellees contend that the statute invades a constitutionally protected "zone of privacy."23 The cases sometimes characterized as protecting "privacy" have in fact involved at least two different kinds of interests.24 One is the individual interest in avoiding disclosure of personal matters,25 and another is the interest in independence in making certain kinds of important decisions.26 Appellees argue that both of these interests are impaired by this statute. The mere existence in readily available form of the information about patients' use of Schedule II drugs creates a genuine concern that the information will become publicly known and that it will adversely affect their reputations. This concern makes some patients reluctant to use, and some doctors reluctant to prescribe, such drugs even when their use is medically indicated. It follows, they argue, that the making of decisions about matters vital to the care of their health is inevitably affected by the statute. Thus, the statute threatens to impair both their interest in the nondisclosure of private information and also their interest in making important decisions independently.
13
We are persuaded, however, that the New York program does not, on its face, pose a sufficiently grievous threat to either interest to establish a constitutional violation.
14
Public disclosure of patient information can come about in three ways. Health Department employees may violate the statute by failing, either deliberately or negligently, to maintain proper security. A patient or a doctor may be accused of a violation and the stored data may be offered in evidence in a judicial proceeding. Or, thirdly, a doctor, a pharmacist, or the patient may voluntarily reveal information on a prescription form.
15
The third possibility existed under the prior law and is entirely unrelated to the existence of the computerized data bank. Neither of the other two possibilities provides a proper ground for attacking the statute as invalid on its face. There is no support in the record, or in the experience of the two States that New York has emulated, for an assumption that the security provisions of the statute will be administered improperly.27 And the remote possibility that judicial supervision of the evidentiary use of particular items of stored information will provide inadequate protection against unwarranted disclosures is surely not a sufficient reason for invalidating the entire patient-identification program.28
16
Even without public disclosure, it is, of course, true that private information must be disclosed to the authorized employees of the New York Department of Health. Such disclosures, however, are not significantly different from those that were required under the prior law. Nor are they meaningfully distinguishable from a host of other unpleasant invasions of privacy that are associated with many facets of health care. Unquestionably, some individuals' concern for their own privacy may lead them to avoid or to postpone needed medical attention. Nevertheless, disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient.29 Requiring such disclosures to representatives of the State having responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy.
17
Appellees also argue, however, that even if unwarranted disclosures do not actually occur, the knowledge that the information is readily available in a computerized file creates a genuine concern that causes some persons to decline needed medication. The record supports the conclusion that some use of Schedule II drugs has been discouraged by that concern; it also is clear, however, that about 100,000 prescriptions for such drugs were being filled each month prior to the entry of the District Court's injunction. Clearly, therefore, the statute did not deprive the public of access to the drugs.
18
Nor can it be said that any individual has been deprived of the right to decide independently, with the advice of his physician, to acquire and to use needed medication. Although the State no doubt could prohibit entirely the use of particular Schedule II drugs,30 it has not done so. This case is therefore unlike those in which the Court held that a total prohibition of certain conduct was an impermissible deprivation of liberty. Nor does the State require access to these drugs to be conditioned on the consent of any state official or other third party.31 Within dosage limits which appellees do not challenge, the decision to prescribe, or to use, is left entirely to the physician and the patient.
19
We hold that neither the immediate nor the threatened impact of the patient-identification requirements in the New York State Controlled Substances Act of 1972 on either the reputation or the independence of patients for whom Schedule II drugs are medically indicated is sufficient to constitute an invasion of any right or liberty protected by the Fourteenth Amendment.32
III
20
The appellee doctors argue separately that the statute impairs their right to practice medicine free of unwarranted state interference. If the doctors' claim has any reference to the impact of the 1972 statute on their own procedures, it is clearly frivolous. For even the prior statute required the doctor to prepare a written prescription identifying the name and address of the patient and the dosage of the prescribed drug. To the extent that their claim has reference to the possibility that the patients' concern about disclosure may induce them to refuse needed medication, the doctors' claim is derivative from, and therefore no stronger than, the patients'.33 Our rejection of their claim therefore disposes of the doctors' as well.
IV
21
A final word about issues we have not decided. We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files.34 The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. Recognizing that in some circumstances that duty arguably has its roots in the Constitution, nevertheless New York's statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual's interest in privacy. We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private data whether intentional or unintentional or by a system that did not contain comparable security provisions. We simply hold that this record does not establish an invasion of any right or liberty protected by the Fourteenth Amendment.
22
Reversed.
23
Mr. Justice BRENNAN, concurring.
24
I write only to express my understanding of the opinion of the Court, which I join.
25
The New York statute under attack requires doctors to disclose to the State information about prescriptions for certain drugs with a high potential for abuse, and provides for the storage of that information in a central computer file. The Court recognizes that an individual's "interest in avoiding disclosure of personal matters" is an aspect of the right of privacy, ante, at 598-600, and nn. 24-25, but holds that in this case, any such interest has not been seriously enough invaded by the State to require a showing that its program was indispensable to the State's effort to control drug abuse.
26
The information disclosed by the physician under this program is made available only to a small number of public health officials with a legitimate interest in the information. As the record makes clear, New York has long required doctors to make this information available to its officials on request, and that practice is not challenged here. Such limited reporting requirements in the medical field are familiar ante, at 602 n. 29, and are not generally regarded as an invasion of privacy. Broad dissemination by state officials of such information, however, would clearly implicate constitutionally protected privacy rights, and would presumably be justified only by compelling state interests. See, e. g., Roe v. Wade, 410 U.S. 113, 155-156, 93 S.Ct. 705, 728, 35 L.Ed.2d 147 (1973).
27
What is more troubling about this scheme, however, is the central computer storage of the data thus collected. Obviously, as the State argues, collection and storage of data by the State that is in itself legitimate is not rendered unconstitutional simply because new technology makes the State's operations more efficient. However, as the example of the Fourth Amendment shows the Constitution puts limits not only on the type of information the State may gather, but also on the means it may use to gather it. The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology.
28
In this case, as the Court's opinion makes clear, the State's carefully designed program includes numerous safeguards intended to forestall the danger of indiscriminate disclosure. Given this serious and, so far as the record shows, successful effort to prevent abuse and limit access to the personal information at issue, I cannot say that the statute's provisions for computer storage, on their face, amount to a deprivation of constitutionally protected privacy interests, any more than the more traditional reporting provisions.
29
In the absence of such a deprivation, the State was not required to prove that the challenged statute is absolutely necessary to its attempt to control drug abuse. Of course, a statute that did effect such a deprivation would only be consistent with the Constitution if it were necessary to promote a compelling state interest. Roe v. Wade, supra; Eisenstadt v. Baird, 405 U.S. 438, 464, 92 S.Ct. 1029, 1043-1044, 31 L.Ed.2d 349 (1972) (White, J., concurring in result).
30
Mr. Justice STEWART, concurring.
31
In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, the Court made clear that although the Constitution affords protection against certain kinds of government intrusions into personal and private matters,* there is no "general constitutional 'right to privacy.' . . . (T)he protection of a person's general right to privacy his right to be let alone by other people is, like the protection of his property and of his very life, left largely to the law of the individual States." Id., at 350-351, 88 S.Ct., at 510 (footnote omitted).
32
Mr. Justice BRENNAN's concurring opinion states that "(b)road dissemination by state officials of (the information collected by New York State) . . . would clearly implicate constitutionally protected privacy rights . . . ." Ante, at 606. The only possible support in his opinion for this statement is its earlier reference to two footnotes in the Court's opinion, ibid., citing ante, at 598-600, and nn. 24-25 (majority opinion). The footnotes, however, cite to only two Court opinions, and those two cases do not support the proposition advanced by Mr. Justice BRENNAN.
33
The first case referred to, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, held that a State cannot constitutionally prohibit a married couple from using contraceptives in the privacy of their home. Although the broad language of the opinion includes a discussion of privacy, see id., at 484-485, 85 S.Ct., at 1681-1682, the constitutional protection there discovered also related to (1) marriage, see id., at 485-486, 85 S.Ct., at 1682; id., at 495, 85 S.Ct., at 1687-1688. (Goldberg, J., concurring); id., at 500, 85 S.Ct., at 1690 (Harlan, J., concurring in judgment), citing Poe v. Ullman, 367 U.S. 497, 522, 81 S.Ct. 1752, 1166, 6 L.Ed.2d 989 (Harlan, J., dissenting); 381 U.S., at 502-503, 85 S.Ct., at 1691-1692 (White, J., concurring in judgment); (2) privacy in the home, see id., at 484-485, 85 S.Ct., at 1681-1682 (majority opinion); id., at 495, 85 S.Ct., at 1687 (Goldberg, J., concurring); id., at 500, 85 S.Ct., at 1690 (Harlan, J., concurring in judgment), citing Poe v. Ullman, supra, 367 U.S. at 522, 81 S.Ct. at 1766 (Harlan, J., dissenting); and (3) the right to use contraceptives, see 381 U.S., at 503, 85 S.Ct., at 1691-1692 (White, J., concurring in judgment); see also Roe v. Wade, 410 U.S. 113, 169-170, 93 S.Ct. 705, 735, 35 L.Ed.2d 147 (Stewart, J., concurring). Whatever the ratio decidendi of Griswold, it does not recognize a general interest in freedom from disclosure of private information.
34
The other case referred to, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, held that an individual cannot constitutionally be prosecuted for possession of obscene materials in his home. Although Stanley makes some reference to privacy rights, id., at 564, 89 S.Ct., at 1247-1248, the holding there was simply that the First Amendment as made applicable to the States by the Fourteenth protects a person's right to read what he chooses in circumstances where that choice poses no threat to the sensibilities or welfare of others, id., at 565-568, 89 S.Ct., at 1248-1250.
35
Upon the understanding that nothing the Court says today is contrary to the above views, I join its opinion and judgment.
1
1972 N.Y.Laws, c. 878; N.Y.Pub.Health Law § 3300 et seq. (McKinney, Supp. 1976-1977) (hereafter Pub. Health Law, except as indicated in n.13, infra).
2
Roe v. Ingraham, 403 F.Supp. 931 (S.D.N.Y.1975). Earlier the District Court had dismissed the complaint for want of a substantial federal question. Roe v. Ingraham, 357 F.Supp. 1217 (D.C.N.Y.1973). The Court of Appeals reversed, holding that a substantial constitutional question was presented and therefore a three-judge court was required. Roe v. Ingraham, 480 F.2d 102 (C.A.2 1973).
3
Jurisdiction is conferred by 28 U.S.C. §§ 1253, 2101(b).
4
1970 N.Y.Laws, c. 474, amended by 1971 N.Y.Laws, c. 7. The Temporary State Commission to Evaluate the Drug Laws (hereafter T. S. C.) issued two reports which, it is stipulated, constitute part of the legislative history of the Act. The reports are the Interim Report of the Temporary State Commission to Evaluate the Drug Laws (State of New York, Legislative Doc. No. 10, Jan. 1972); and the Second Interim Report of the Temporary State Commission to Evaluate the Drug Laws (Albany, N.Y., Apr. 5, 1971).
5
Id., at 3-5.
6
The Chairman of the T. S. C. summarized its findings:
"Law enforcement officials in both California and Illinois have been consulted in considerable depth about the use of multiple prescriptions, since they have been using them for a considerable period of time. They indicate to us that they are not only a useful adjunct to the proper identification of culpable professional and unscrupulous drug abusers, but that they also give a reliable statistical indication of the pattern of drug flow throughout their states: information sorely needed in this state to stem the tide of diversion of lawfully manufactured controlled substances." Memorandum of Chester R. Hardt, App. 87a-88a.
T. S. C. Interim Report 21; T.S.C. Second Interim Report 27-44. Cal. Health & Safety Code §§ 11158; 11160; 11167 (West, 1975 and Supp.1976); Ill.Ann.Stat., c. 561/2, §§ 1308, 1311, 1312(a) (Supp.1977)..
7
These five schedules conform in all material aspects with the drug schedules in the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970. 21 U.S.C. § 801 et seq.
8
These include opium and opium derivatives, cocaine, methadone, amphetamines, and methaqualone. Pub.Health Law § 3306. These drugs have accepted uses in the amelioration of pain and in the treatment of epilepsy, narcolepsy, hyperkinesia, schizo-affective disorders, and migraine headaches.
9
Pub.Health Law §§ 3334, 3338. These forms are prepared and issued by the Department of Health, numbered serially, in groups of 100 forms at $10 per group (10 cents per triplicate form). New York State Health Department Official New York State Prescription, Form NC-77 (8/72).
10
Pub.Health Law §§ 3331-3333, 3339. The pharmacist normally forwards the prescription to Albany after filling it. If the physician dispenses the drug himself, he must forward two copies of the prescription to the Department of Health, § 3331(6).
11
Pub.Health Law § 3370(3), 1974 N.Y.Laws, c. 965, § 16. The physician and the pharmacist are required to retain their copies for five years also, Pub.Health Law §§ 3331(6), 3332(4), 3333(4), but they are not required to destroy them.
12
Section 3371 of the Pub.Health Law states:
"1. No person, who has knowledge by virtue of his office of the identity of a particular patient or research subject, a manufacturing process, a trade secret or a formula shall disclose such knowledge, or any report or record thereof, except:
"(a) to another person employed by the department, for purposes of executing provisions of this article; or
"(b) pursuant to judicial subpoena or court order in a criminal investigation or proceeding; or
"(c) to an agency, department of government, or official board authorized to regulate, license or otherwise supervise a person who is authorized by this article to deal in controlled substances, or in the course of any investigation or proceeding by or before such agency, department or board; or
"(d) to a central registry established pursuant to this article.
"2. In the course of any proceeding where such information is disclosed, except when necessary to effectuate the rights of a party to the proceeding, the court or presiding officer shall take such action as is necessary to insure that such information, or record or report of such information is not made public."
Pursuant to its statutory authority, the Department of Health has promulgated regulations in respect of confidentiality as follows:
"No person who has knowledge by virtue of his office of the identity of a particular patient or research subject, a manufacturing process, a trade secret or a formula shall disclose such knowledge, or any report or record thereof, except:
"(a) to another person who by virtue of his office as an employee of the department is entitled to obtain such information; or
"(b) pursuant to judicial subpoena or court order in a criminal investigation or proceedings; or
"(c) to an agency, department of government, or official board authorized to regulate, license or otherwise supervise a person who is authorized by article 33 of the Public Health Law to deal in controlled substances, or in the course of any investigation or proceeding by or before such agency, department or board; or
"(d) to a central registry established pursuant to article 33 of the Public Health Law." 10 N.Y.C.R.R. § 80.107 (1973).
13
N.Y. Pub.Health Law § 12-b(2) (McKinney 1971).
14
The physicians' associations, Empire State Physicians Guild, Inc. and the American Federation of Physicians and Dentists, articulate no claims which are severable from the claims of the named physicians. We therefore find it unnecessary to consider whether the organizations themselves may have standing to maintain these suits.
15
In addition to the appeal from the original dismissal of the complaint, the parties took depositions which were made a part of the record and entered into a stipulation of facts.
16
Two parents testified that they were concerned that their children would be stigmatized by the State's central filing system. One child had been taken off his Schedule II medication because of this concern. Three adult patients testified that they feared disclosure of their names would result from central filing of patient identifications. One of them now obtains his drugs in another State. The other two continue to receive Schedule II prescriptions in New York, but continue to fear disclosure and stigmatization. Four physicians testified that the prescription system entrenches on patients' privacy, and that each had observed a reaction of shock, fear, and concern on the part of their patients whom they had informed of the plan. One doctor refuses to prescribe Schedule II drugs for his patients. On the other hand, over 100,000 patients per month have been receiving Schedule II drug prescriptions without their objections, if any, to central filing having come to the attention of the District Court. The record shows that the provisions of the Act were brought to the attention of the section on psychiatry of the New York State Medical Society (App. 166a), but that body apparently declined to support this suit.
17
Pub.Health Law §§ 3331(6), 3332(2)(a), 3333(4).
18
Roe v. Wade, 410 U.S. 113, 117, 93 S.Ct. 705, 709, 35 L.Ed.2d 147; Griswold v. Connecticut, 381 U.S. 479, 481-482, 85 S.Ct. 1678, 1679-1680, 14 L.Ed.2d 510; Ferguson v. Skrupa, 372 U.S. 726, 729-730, 83 S.Ct. 1028, 1030-1031, 10 L.Ed.2d 93; FHA v. Darlington, Inc., 358 U.S. 84, 91-92, 79 S.Ct. 141, 146, 3 L.Ed.2d 132.
19
"We are not concerned, however, with the wisdom, need, or appropriateness of the legislation." Olsen v. Nebraska ex rel. Western Reference & Bond Assn., 313 U.S. 236, 246, 61 S.Ct. 862, 865, 85 L.Ed. 1305.
20
Mr. Justice Brandeis' classic statement of the proposition merits reiteration:
"To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold." New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386-387, 76 L.Ed. 747 (dissenting opinion) (footnote omitted).
21
The absence of detected violations does not, of course, demonstrate that a statute has no significant deterrent effect.
"From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial and business affairs . . .." Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61, 93 S.Ct. 2628, 2637, 37 L.Ed.2d 446 (citations omitted). "Nothing in the Constitution prohibits a State from reaching . . . a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data." Id., at 63, 93 S.Ct., at 2638.
22
"Such regulation, it can be assumed, could take a variety of valid forms." Robinson v. California, 370 U.S. 660, 664, 82 S.Ct. 1417, 1419, 8 L.Ed.2d 758. Cf. Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45, 41 S.Ct. 425, 426, 65 L.Ed. 819; Beauharnais v. Illinois, 343 U.S. 250, 261-262, 72 S.Ct. 725, 732-733, 96 L.Ed. 919.
23
As the basis for the constitutional claim they rely on the shadows cast by a variety of provisions in the Bill of Rights. Language in prior opinions of the Court or its individual Justices provides support for the view that some personal rights "implicit in the concept of ordered liberty" (see Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288, quoted in Roe v. Wade, 410 U.S., at 152, 93 S.Ct., at 726), are so "fundamental" that an undefined penumbra may provide them with an independent source of constitutional protection. In Roe v. Wade, however, after carefully reviewing those cases, the Court expressed the opinion that the "right of privacy" is founded in the Fourteenth Amendment's concept of personal liberty, id., at 152-153, 93 S.Ct., at 726-727.
"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Id., at 153, 93 S.Ct., at 727 (emphasis added). See also id., at 168-171, 93 S.Ct., at 734-736 (Stewart, J., concurring); Griswold v. Connecticut, 381 U.S. 479, 500, 85 S.Ct. 1678, 1690, 14 L.Ed.2d 510 (Harlan, J., concurring in judgment).
24
Professor Kurland has written:
"The concept of a constitutional right of privacy still remains largely undefined. There are at least three facets that have been partially revealed, but their form and shape remain to be fully ascertained. The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion." The private I, the University of Chicago Magazine 7, 8 (autumn 1976). The first of the facets which he describes is directly protected by the Fourth Amendment; the second and third correspond to the two kinds of interests referred to in the text.
25
In his dissent in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944, Mr. Justice Brandeis characterized "the right to be let alone" as "the right most valued by civilized men"; in Griswold v. Connecticut, 381 U.S. 479, 483, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510, the Court said: "(T)he First Amendment has a penumbra where privacy is protected from governmental intrusion." See also Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542; California Bankers Assn. v. Shultz, 416 U.S. 21, 79, 94 S.Ct. 1494, 1526, 39 L.Ed.2d 812 (Douglas, J., dissenting); id., at 78, 94 S.Ct., at 1525 (Powell, J., concurring).
26
Roe v. Wade, supra; Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201; Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832. In Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405, the Court characterized these decisions as dealing with "matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas, it has been held that there are limitations on the States' power to substantively regulate conduct."
27
The T. S. C.'s independent investigation of the California and Illinois central filing systems failed to reveal a single case of invasion of a patient's privacy. T. S. C. Memorandum of Chester R. Hardt, Chairman, Re: Triplicate Prescriptions, New York State Controlled Substances Act, effective Apr. 1, 1973 (reproduced at App. 88a).
Just last Term in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659, we rejected a contention that the reporting requirements of the Federal Election Campaign Act of 1971 violated the First Amendment rights of those who contribute to minority parties:
"But no appellant in this case has tendered record evidence . . . . Instead, appellants primarily rely on 'the clearly articulated fears of individuals, well experienced in the political process.' . . . At best they offer the testimony of several minor-party officials that one or two persons refused to make contributions because of the possibility of disclosure. On this record, the substantial public interest in disclosure identified by the legislative history of this Act outweighs the harm generally alleged." 424 U.S., at 71-72, 96 S.Ct., at 659 (footnote omitted).
Here, too, appellees urge on us "clearly articulated fears" about the pernicious effects of disclosure. But this requires us to assume even more than that we refused to do in Buckley. There the disclosures were to be made in accordance with the statutory scheme. Appellees' disclosures could only be made if the statutory scheme were violated as described, supra, at 594-595.
The fears of parents on behalf of their pre-adolescent children who are receiving amphetamines in the treatment of hyperkinesia are doubly premature. Not only must the Act's nondisclosure provisions be violated in order to stigmatize the children as they enter adult life, but the provisions requiring destruction of all prescription records after five years would have to be ignored, see n. 11, supra, and accompanying text.
28
The physician-patient evidentiary privilege is unknown to the common law. In States where it exists by legislative enactment, it is subject to many exceptions and to waiver for many reasons. C. McCormick, Evidence §§ 98, 101-104 (2d ed. 1972); 8 J. Wigmore, Evidence § 2380, nn. 3, 5, 6, §§ 2388-2391 (McNaughton rev. ed. 1961).
29
Familiar examples are statutory reporting requirements relating to venereal disease, child abuse, injuries caused by deadly weapons, and certifications of fetal death. Last Term we upheld the recordkeeping requirements of the Missouri abortion laws against a challenge based on the protected interest in making the abortion decision free of governmental intrusion, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 79-81, 96 S.Ct. 2831, 2846-2847, 49 L.Ed.2d 788.
30
It is, of course, well settled that the State has broad police powers in regulating the administration of drugs by the health professions. Robinson v. California, 370 U.S., at 664-665, 82 S.Ct., at 1419-1420; Minnesota ex. rel. Whipple v. Martinson, 256 U.S., at 45, 41 S.Ct., at 426; Barsky v. Board of Regents, 347 U.S. 442, 449, 74 S.Ct. 650, 654, 98 L.Ed. 829.
31
In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, for instance, the constitutionally defective statute required the written concurrence of two state-licensed physicians, other than the patient's personal physician, before an abortion could be performed, and the advance approval of a committee of not less than three members of the hospital staff where the procedure was to be performed, regardless of whether the committee members had a physician-patient relationship with the woman concerned.
32
The Roe appellees also claim that a constitutional privacy right emanates from the Fourth Amendment, citing language in Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, at a point where it quotes from Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. But those cases involve affirmative, unannounced, narrowly focused intrusions into individual privacy during the course of criminal investigations. We have never carried the Fourth Amendment's interest in privacy as far as the Roe appellees would have us. We decline to do so now.
Likewise the Patient appellees derive a right to individual anonymity from our freedom of association cases such as Bates v. Little Rock, 361 U.S. 516, 522-523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480, and NAACP v. Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171-1172, 2 L.Ed.2d 1488. But those cases protect "freedom of association for the purpose of advancing ideas and airing grievances," Bates v. Little Rock, supra, 361 U.S., at 523, 80 S.Ct., at 416, not anonymity in the course of medical treatment. Also, in those cases there was an uncontroverted showing of past harm through disclosure, NAACP v. Alabama, 357 U.S., at 462, 78 S.Ct., at 1172, an element which is absent here.
Cf. Schulman v. New York City Health & Hospitals Corp., 38 N.Y.2d 234, 379 N.Y.S.2d 702, 342 N.E.2d 501 (1975).
33
The doctors rely on two references to a physician's right to administer medical care in the opinion in Doe v. Bolton, 410 U.S., at 197-198, and 199, 93 S.Ct., at 750, and 751, 35 L.Ed.2d 201. Nothing in that case suggests that a doctor's right to administer medical care has any greater strength than his patient's right to receive such care. The constitutional right vindicated in Doe was the right of a pregnant woman to decide whether or not to bear a child without unwarranted state interference. The statutory restrictions on the abortion procedures were invalid because they encumbered the woman's exercise of that constitutionally protected right by placing obstacles in the path of the doctor upon whom she was entitled to rely for advice in connection with her decision. If those obstacles had not impacted upon the woman's freedom to make a constitutionally protected decision, if they had merely made the physician's work more laborious or less independent without any impact on the patient, they would not have violated the Constitution.
34
Boyer, Computerized Medical Records and the Right to Privacy: The Emerging Federal Response, 25 Buffalo L.Rev. 37 (1975); Miller, Computers, Data Banks and Individual Privacy: An Overview, 4 Colum. Human Rights L.Rev. 1 (1972); A. Miller, The Assault on Privacy (1971). See also Utz v. Cullinane, 172 U.S.App.D.C. 67, 78-82, 520 F.2d 467, 478-482 (1975).
*
See 389 U.S., at 350 n. 5, 88 S.Ct., at 510 n. 5:
"The First Amendment, for example, imposes limitations upon governmental abridgment of 'freedom to associate and privacy in one's association.' NAACP v. Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488. The Third Amendment's prohibition against the unconsented peacetime quartering of soldiers protects another aspect of privacy from governmental intrusion. To some extent, the Fifth Amendment too 'reflects the Constitution's concern for . . . ". . . the right of each individual 'to a private enclave where he may lead a private life.' " ' Tehan v. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453. Virtually every governmental action interferes with personal privacy to some degree. The question in each case is whether that interference violates a command of the United States Constitution."
As the Court notes, ante, at 599-600, and n. 26, there is also a line of authority, often characterized as involving "privacy," affording constitutional protection to the autonomy of an individual or a family unit in making decisions generally relating to marriage, procreation, and raising children.
| 45
|
429 U.S. 545
97 S.Ct. 837
51 L.Ed.2d 30
Jack M. WEATHERFORD, etc., et al., Petitioners,v.Brett Allen BURSEY.
No. 75-1510.
Argued Dec. 7, 1976.
Decided Feb. 22, 1977.
Syllabus
Respondent and petitioner Weatherford (hereinafter petitioner), an undercover agent, were arrested for a state criminal offense, each thereafter retaining separate counsel. Petitioner had two pretrial meetings with respondent and respondent's counsel, who had sought petitioner's presence for the purpose of securing information or suggestions as to respondent's defense. Petitioner had no discussions concerning respondent's trial strategy or the pending criminal action either with his superiors or with the prosecution. Petitioner (who had told respondent he would not be a prosecution witness) testified for the prosecution, which on the morning of the trial decided to call petitioner as a witness because he had been seen in the company of police officers and had thus lost effectiveness as an undercover agent. Respondent was convicted. After he had served his sentence, he brought this action against petitioner under 42 U.S.C. § 1983, alleging that petitioner's participation in the two meetings had deprived respondent of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments as well as his right to a fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment. The District Court found for petitioner. The Court of Appeals, without disturbing the District Court's factual findings, reversed, concluding that "whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial," and that the concealment of petitioner's undercover status lulled respondent into a false sense of security, interfering with his trial preparations and denying him due process of law under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Held:
1. Respondent was not deprived of his right to counsel under the Sixth Amendment, which does not establish a per se rule forbidding an undercover agent to meet with a defendant's counsel. Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26; O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94; Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374, distinguished. Pp. 550-559.
(a) As long as the information possessed by petitioner about the two meetings remained uncommunicated, he posed no threat to respondent's Sixth Amendment rights. Pp. 554-557.
(b) Petitioner went to the meetings, not to spy, but because he was asked by respondent and his counsel and because the State was interested in maintaining petitioner's status as an informant and not arousing respondent's suspicions. Adoption of the Court of Appeals' per se rule would for all practical purposes have required petitioner to unmask himself. Pp. 557-558.
2. The Due Process Clause does not require that the prosecution must reveal before trial the names of undercover agents or other witnesses who will testify unfavorably to the defense. Pp. 559-561.
(a) There is no constitutional right to discovery in a criminal case, and Brady, supra, did not create one. P. 559.
(b) That petitioner not only concealed his identity but represented that he would not be a prosecution witness did not deny respondent a right to a fair trial. The misrepresentation was not deliberate, and there is no constitutional difference between the surprise testimony of an informer who is not suspected and therefore is not asked about testifying for the prosecution and the informer who, like petitioner, is asked by the defendant but denies that he will testify. P. 560.
(c) Though the Court of Appeals also suggested that petitioner's continued duplicity denied respondent the opportunity to plea bargain, there is no constitutional right to plea bargain. Pp. 560-561.
528 F.2d 483, reversed.
Joseph Crouch Coleman, Grand Junction, Colo., for petitioners.
Andrew L. Frey, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
Laughlin McDonald, Atlanta, Ga., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The issue here is whether in the circumstances present in this case the conduct of an undercover agent for a state law enforcement agency deprived respondent Bursey of his right to the effective assistance of counsel guaranteed him by the Sixth and Fourteenth Amendments of the United States Constitution or deprived him of due process of law in violation of the Fourteenth Amendment.
2
* This case began when respondent Bursey filed suit under 42 U.S.C. § 1983 against petitioners Weatherford and Strom, respectively an undercover agent for and the head of the South Carolina State Law Enforcement Division, asserting that the defendants had deprived him of certain constitutional rights. The case was tried without a jury. The following facts are taken from the District Court's findings, which were not disturbed by the Court of Appeals.
3
During the early morning hours of March 20, 1970, Bursey and Weatherford, along with two others, vandalized the offices of the Richland County Selective Service in Columbia, S. C. Police were advised of the incident by Weatherford, who, in order to maintain his undercover status and his capability of working on other current matters in that capacity, was arrested and charged along with Bursey. Weatherford was immediately released on bond and, continuing the masquerade, retained an attorney, Frank Taylor, Sr. Bursey, who was later released on bond, retained his own counsel, C. Rauch Wise.
4
On two occasions thereafter and prior to trial, Weatherford met with Bursey and Wise, and the approaching trial was discussed. With respect to these meetings, the District Court found as follows:
5
"On neither of these occasions did the defendant Weatherford seek information from the plaintiff or his attorney, and on neither occasion did he initiate or ask for the meeting. He was brought into the meetings by the plaintiff and plaintiff's attorney in an effort to obtain information, ideas or suggestions as to the plaintiff's defense. From the beginning Weatherford advised plaintiff and plaintiff's attorney that Weatherford would obtain a severance of his case from that of the plaintiff. This severance was to be upon the ground that Weatherford might be prejudiced in going to trial with Bursey as a codefendant, because of Bursey's reputation and participation in other activities which had been covered by the news media. On no occasion did Bursey or his attorney question the granting of a severance, nor did they seem to concern themselves with whether the prosecutor would consent to a severance, although such consent is quite unusual where codefendants are charged with the same crime and proof will be from the same witnesses based upon identical facts. At those meetings between plaintiff, plaintiff's attorney and defendant Weatherford the plaintiff and his attorney raised the question of a possible informer being used to prove the case, but they never asked Weatherford if he were an informer and he never specifically denied being an informer, since he was never asked or accused." App. 248-249.
6
At no time did Weatherford discuss with or pass on to his superiors or to the prosecuting attorney or any of the attorney's staff "any details or information regarding the plaintiff's trial plans, strategy, or anything having to do with the criminal action pending against plaintiff." Id., at 249. Until the day of trial the prosecuting attorney did not plan to use Weatherford as a witness. Consequently, until then, Weatherford had not expected to be a witness and had anticipated continuing his undercover work. However, Weatherford had lost some of his effectiveness as an agent in the weeks preceding trial because he had been seen in the company of police officers, and he was called for the prosecution. He testified as to his undercover activities and gave an eyewitness account of the events of March 20, 1970. Bursey took the stand, was convicted, and then disappeared until apprehended some two years later, at which time he was incarcerated and forced to serve his 18-month sentence.
7
Bursey then began this § 1983 action, alleging that Weatherford had communicated to his superiors and prosecuting officials the defense strategies and plans which he had learned at his meetings with Bursey and Wise, thereby depriving Bursey of the effective assistance of counsel to which he was entitled under the Sixth and Fourteenth Amendments as well as of his right to a fair trial guaranteed him by the Due Process Clause of the Fourteenth Amendment. The District Court found for the defendants in all respects and entered judgment accordingly.
8
The Court of Appeals for the Fourth Circuit reversed, 528 F.2d 483 (1975), concluding that "on the facts as found by the district court Bursey's rights to effective assistance of counsel and a fair trial were violated." Id., at 486. The Court of Appeals held that "whenever the prosecution knowingly arranges and permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial." Ibid. That the intrusion occurred in order to prevent revealing Weatherford's identity as an undercover agent was immaterial. The Court of Appeals thought that Weatherford was himself "a member of the prosecution," id., at 487, and that therefore it was also immaterial that he had not informed other officials about what was said or done in the two meetings with Bursey and Wise.
9
In addition, the Court of Appeals concluded that Bursey had been denied due process of law under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by concealment of Weatherford's identity until the day of trial and by Weatherford's statement that he would not be a witness, all of which lulled Bursey into a false sense of security and interfered with his preparations for trial. The judgment of the District Court was reversed, but the remand for further proceedings would have allowed Weatherford and Strom to present a qualified immunity defense under Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).
10
We granted the petition for certiorari filed by Weatherford and Strom, who are represented by the State Attorney General. 426 U.S. 946, 96 S.Ct. 3165, 49 L.Ed.2d 1183 (1976). We reverse.
II
11
The exact contours of the Court of Appeals' per se right-to-counsel rule are difficult to discern; but as the Court of Appeals applied the rule in this case, it would appear that if an undercover agent meets with a criminal defendant who is awaiting trial and with his attorney and if the forthcoming trial is discussed without the agent's revealing his identity, a violation of the defendant's constitutional rights has occurred, whatever was the purpose of the agent in attending the meeting, whether or not he reported on the meeting to his superiors, and whether or not any specific prejudice to the defendant's preparation for or conduct of the trial is demonstrated or otherwise threatened. The Court of Appeals was of the view, 528 F.2d, at 486, that this Court "establish(ed) such a per se rule" in Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966), and O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967). The Court of Appeals also relied on Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).
12
We cannot agree that these cases, individually or together, either require or suggest the rule announced by the Court of Appeals and now urged by Bursey. Both Black and O'Brien involved surreptitious electronic surveillance by the Government, which was discovered after trial and conviction and which was plainly illegal under the Fourth Amendment.1 In each case, some, but not all, of the conversations overheard were between the criminal defendant and his counsel during trial preparation. The conviction in each case was set aside and a new trial ordered. The explanatory per curiam in Black, although referring to the overheard conversations with counsel, did not rule that whenever conversations with counsel are overheard the Sixth Amendment is violated and a new trial must be had. Indeed, neither the Sixth Amendment nor the right to counsel was even mentioned in the short opinion. The Solicitor General conceded that Black was entitled to a "judicial determination" of whether "the monitoring of conversations between (Black) and his attorney had (any) effect upon his conviction or the fairness of his trial," although the Solicitor General contended that information derived from the overheard conversations was not used in any way by the prosecution. Memorandum for United States in Black v. United States, O.T. 1965, No. 1029, p. 4 (emphasis added). The Court focused on the particular form the "judicial determination" should take, concluding that on the particular facts of the case a new trial was the more appropriate means of affording Black "an opportunity to protect himself from the use of evidence that might be otherwise inadmissible." 385 U.S., at 29, 87 S.Ct., at 192 (emphasis added). In O'Brien, the Court wrote nothing further, merely citing the Black per curiam. Once again the Solicitor General did not oppose further judicial proceedings to determine whether any information from the surveillance had been used at trial, notwithstanding his assertion that the contents of the overheard conversations were never communicated to the prosecuting attorneys. Brief for United States in O'Brien v. United States, O.T. 1966, No. 823, pp. 10-12.
13
It is difficult to believe that the Court in Black and O'Brien was evolving a definitive construction of the Sixth Amendment without identifying the Amendment it was interpreting, especially in view of the well-established Fourth Amendment grounds for excluding the fruits of the illegal surveillance.2 If anything is to be inferred from these two cases with respect to the right to counsel, it is that when conversations with counsel have been overheard, the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial. This is a far cry from the per se rule announced by the Court of Appeals below, for under that rule trial prejudice to the defendant is deemed irrelevant. Here, the courts below have already conducted the "judicial determination," lacking in Black and O'Brien, of the effect of the overheard conversations on the defendant's conviction, and there is nothing in their findings or in the record to indicate any "use of evidence that might be otherwise inadmissible."
14
Neither does the Court's decision in Hoffa v. United States, supra, support the proposition urged by respondent. There, an informant sat in on conversations that defendant Hoffa had with his lawyers and with others during the course of Hoffa's trial on a charge of violating the Taft-Hartley Act. The jury at that trial hung. Hoffa was then tried for tampering with that jury. The informer testified at the latter trial with respect to conversations he had overheard in Hoffa's hotel suite during the prior trial, not including, however, the conversations Hoffa had with counsel. The Court sustained Hoffa's jury-tampering conviction was sustained over his claim, among others, that his Sixth Amendment counsel right had been violated.
15
In doing so, the Court did not hold that the Sixth Amendment right to counsel subsumes a right to be free from intrusion by informers into counsel-client consultations. Nor did it purport to describe the contours of any such right. The Court merely assumed, without deciding, that two cases in the Court of Appeals for the District of Columbia Circuit dealing with the right to counsel, Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879 (1953), and Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (1951), were correctly decided;3 assumed without deciding, that had Hoffa been convicted at his first trial, the conviction would have been set aside because the informer had overheard Hoffa and his lawyers conversing and had reported to the authorities the substance of at least some of those conversations; and then held that Hoffa's assumed Sixth Amendment rights had not been violated because the informer's testimony at the jury-tampering trial did not touch upon the overheard conversations with counsel but dealt only with conversations between Hoffa and third parties when his lawyers were not present. 385 U.S., at 307-308, 87 S.Ct., at 416. Neither Black, O'Brien, Hoffa, nor any other case in this Court to which we have been cited furnishes grounds for the interpretation and application of the Sixth and Fourteenth Amendments appearing in the Court of Appeals' opinion and judgment.
16
At the same time, we need not agree with petitioners that whenever a defendant converses with his counsel in the presence of a third party thought to be a confederate and ally, the defendant assumes the risk and cannot complain if the third party turns out to be an informer for the government who has reported on the conversations to the prosecution and who testifies about them at the defendant's trial. Had Weatherford testified at Bursey's trial as to the conversation between Bursey and Wise; had any of the State's evidence originated in these conversations; had those overheard conversations been used in any other way to the substantial detriment of Bursey; or even had the prosecution learned from Weatherford, an undercover agent, the details of the Bursey-Wise conversations about trial preparations, Bursey would have a much stronger case.4
17
None of these elements is present here, however. Weatherford's testimony for the prosecution about the events of March and April 1970 revealed nothing said or done at the meetings between Bursey and Wise that he attended.5 None of the Government's evidence was obtained as a consequence of Weatherford's participation in those meetings. Nevertheless, it might be argued that Weatherford, a dutiful agent, surely communicated to the prosecutors Bursey's defense plans and strategy and his attorney's efforts to prepare for trial, all of which was inherently detrimental to Bursey, unfairly advantaged the prosecution, and threatened to subvert the adversary system of criminal justice.
18
The argument founders on the District Court's express finding that Weatherford communicated nothing at all to his superiors or to the prosecution about Bursey's trial plans or about the upcoming trial. App. 249, 252. The Court of Appeals did not disturb this finding, but sought to surmount it by declaring Weatherford himself to have been a member of the prosecuting team whose knowledge of Bursey's trial plans was alone enough to violate Bursey's constitutional right to counsel and to vitiate Bursey's conviction. 528 F.2d, at 487. Though imaginative, this reasoning is not a realistic assessment of the relationship of Weatherford to the prosecuting staff or of the potential for detriment to Bursey or benefit to the State that Weatherford's uncommunicated knowledge might pose. If the fact was, as found by the District Court, that Weatherford communicated nothing about the two meetings to anyone else, we are quite unconvinced that a constitutional claim under the Sixth and Fourteenth Amendments was made out.
19
This is consistent with the Court's approach in the Hoffa case. There, the informant overheard several conversations between Hoffa and his attorneys, but the Court found it necessary to deal with the Sixth Amendment right-to-counsel claim only after noting that the informant had reported to the Government about at least some of the activities of Hoffa's defense counsel. 385 U.S., at 305-306, 87 S.Ct., at 415. As long as the information possessed by Weatherford remained uncommunicated, he posed no substantial threat to Bursey's Sixth Amendment rights. Nor do we believe that federal or state prosecutors will be so prone to lie or the difficulties of proof will be so great that we must always assume not only that an informant communicates what he learns from an encounter with the defendant and his counsel but also that what he communicates has the potential for detriment to the defendant or benefit to the prosecutor's case.
20
Moreover, this is not a situation where the State's purpose was to learn what it could about the defendant's defense plans and the informant was instructed to intrude on the lawyer-client relationship or where the informant has assumed for himself that task and acted accordingly. Weatherford, the District Court found, did not intrude at all; he was invited to the meeting, apparently not for his benefit but for the benefit of Bursey and his lawyer. App. 248. Weatherford went, not to spy, but because he was asked and because the State was interested in retaining his undercover services on other matters and it was therefore necessary to avoid raising the suspicion that he was in fact the informant whose existence Bursey and Wise already suspected.
21
That the per se rule adopted by the Court of Appeals would operate prophylactically and effectively is very likely true; but it would require the informant to refuse to participate in attorney-client meetings, even though invited, and thus for all practical purposes to unmask himself. Our cases, however, have recognized the unfortunate necessity of undercover work and the value it often is to effective law enforcement. E. g., United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973); Lewis v. United States, 385 U.S. 206, 208-209, 87 S.Ct. 424, 425-426 (1966). We have also recognized the desirability and legality of continued secrecy even after arrest. Roviaro v. United States, 353 U.S. 53, 59, 62, 77 S.Ct. 623, 627, 628, 1 L.Ed.2d 639 (1957). We have no general oversight authority with respect to state police investigations. We may disapprove an investigatory practice only if it violates the Constitution; and judged in this light, the Court of Appeals' per se rule cuts much too broadly. If, for example, Weatherford at Bursey's invitation had attended a meeting between Bursey and Wise but Wise had become suspicious and the conversation was confined to the weather or other harmless subjects, the Court of Appeals' rule, literally read, would cloud Bursey's subsequent conviction, although there would have been no constitutional violation. The same would have been true if Wise had merely asked whether Weatherford was an informant, Weatherford had denied it, and the meeting then had ended; likewise if the entire conversation had consisted of Wise's questions and Weatherford's answers about Weatherford's own defense plans. Also, and more cogently for present purposes, unless Weatherford communicated the substance of the Bursey-Wise conversations and thereby created at least a realistic possibility of injury to Bursey or benefit to the State, there can be no Sixth Amendment violation. Yet under the Court of Appeals' rule, Bursey's conviction would have been set aside on appeal.
22
There being no tainted evidence in this case, no communication of defense strategy to the prosecution, and no purposeful intrusion by Weatherford, there was no violation of the Sixth Amendment insofar as it is applicable to the States by virtue of the Fourteenth Amendment. The proof in this case thus fell short of making out a § 1983 claim, and the judgment of the District Court should have been affirmed in this respect.
23
It is also apparent that neither Weatherford's trial testimony nor the fact of his testifying added anything to the Sixth Amendment claim. Weatherford's testimony for the prosecution related only to events prior to the meetings with Wise and Bursey and referred to nothing that was said at those meetings. There is no indication that any of this testimony was prompted by or was the product of those meetings. Weatherford's testimony was surely very damaging, but the mere fact that he had met with Bursey and his lawyer prior to trial did not violate Bursey's right to counsel any more than the informant's meetings with Hoffa and Hoffa's lawyers rendered inadmissible the informer's testimony having no connection with those conversations.
III
24
Because under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the prosecution has the "duty under the due process clause to insure that 'criminal trials are fair' by disclosing evidence favorable to the defendant upon request," the Court of Appeals also held that the State was constitutionally forbidden to "conceal the identity of an informant from a defendant during his trial preparation," to permit the informant to "deny up through the day before his appearance at trial that he will testify against the defendant," and then to have the informant "testify with devastating effect." 528 F.2d, at 487. This conduct, the Court of Appeals thought, lulled the defendant into a false sense of security and denied him "the opportunity (1) to consider whether plea bargaining might be the best course, (2) to do a background check on Weatherford for purposes of cross-examination, and (3) to attempt to counter the devastating impact of eyewitness identification." Ibid. The Court of Appeals apparently would have arrived at this conclusion whether or not Weatherford had ever met with Wise.
25
Again we are in disagreement. Brady does not warrant the Court of Appeals' holding. It does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably. There is no general constitutional right to discovery in a criminal case, and Brady did not create one; as the Court wrote recently, "the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded. . . ." Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 2212, 37 L.Ed.2d 82 (1973). Brady is not implicated here where the only claim is that the State should have revealed that a government informer would present the eyewitness testimony of a particular agent against the defendant at trial.
26
In terms of the defendant's right to a fair trial, the situation is not changed materially by the additional element relied upon by the Court of Appeals, namely, that Weatherford not only concealed his identity but represented he would not be a witness for the prosecution, an assertion that proved to be inaccurate. There are several answers to the contention that the claim of misrepresentation is of crucial importance. The first is that there was no deliberate misrepresentation in this regard: The trial court found that until the day of trial Weatherford did not expect to be called as a witness; until then he did not know that he would testify. Second, as we understand the argument, it is that once the undercover agent has successfully caused an arrest, he risks causing an unfair trial if he denies his identity when accused or asked. We would hesitate so to construe the Due Process Clause. We are not at all convinced that there is a constitutional difference between the situation where the informant is sufficiently trusted that he is never suspected and never asked about the possibility of his testifying but nevertheless surprises the defendant by giving devastating testimony, and the situation we have here, where the defendant is suspicious enough to ask and the informant denies that he will testify but nevertheless does so. Moreover, if the informant must confess his identity when confronted by an arrested defendant, in many cases the agent in order to protect himself will simply disappear pending trial, before the confrontation occurs. In the last analysis however, the undercover agent who stays in place and continues his deception merely retains the capacity to surprise; and unless the surprise witness or unexpected evidence is, without more, a denial of constitutional rights, Bursey was not denied a fair trial.
27
The Court of Appeals suggested that Weatherford's continued duplicity lost Bursey the opportunity to plea bargain. But there is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial. It is a novel argument that constitutional rights are infringed by trying the defendant rather than accepting his plea of guilty. Moreover, Wise could have approached the prosecutor before trial and surely was under no misapprehension about Bursey's plight during trial. It was also suggested by the Court of Appeals that Bursey was deprived of the opportunity to investigate Weatherford in preparation for possible impeachment on cross-examination. But there was no objection at trial to Weatherford's testimony, no request for a continuance, and even now no indication of substantial prejudice from this occurrence. As for Bursey's claimed disability to counter Weatherford's "devastating" testimony, the disadvantage was no more than exists in any case where the State presents very damaging evidence that was not anticipated. Wise and Bursey must have realized that in going to trial the State was confident of conviction and that if any exculpatory evidence or possible defenses existed it would be extremely wise to have them available. Prudence would have counseled at least as much.
The judgment of the Court of Appeals is
Reversed.6
28
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
29
It is easy to minimize the significance of the incursion into the lawyer-client relationship that the Court sanctions today. After all, as the Court observes, there is no evidence that Weatherford went to the meetings between Bursey and his lawyer with an intent to spy; that he reported to the prosecutor on those meetings; or that what he learned was used to develop evidence against Bursey. But while what occurred here may be "the obnoxious thing in its mildest and least repulsive form . . . illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure." Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 (1886). I cannot join in providing even the narrowest of openings to the practice of spying upon attorney-client communications.
30
There are actually two independent constitutional values that are jeopardized by governmental intrusions into private communications between defendants and their lawyers. First, the integrity of the adversary system and the fairness of trials is undermined when the prosecution surreptitiously acquires information concerning the defense strategy and evidence (or lack of it), the defendant, or the defense counsel. In Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), this Court made clear that while "the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded . . . it does speak to the balance of forces between the accused and his accuser." Id., at 474, 93 S.Ct., at 2212. Due process requires that discovery "be a two-way street."
31
"The State may not insist that trials be run as a 'search for truth' so far as defense witnesses are concerned, while maintaining 'poker game' secrecy for its own witnesses. It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State." Id., at 475-476, 93 S.Ct., at 2212.
32
At issue in Wardius was a statute compelling defendants to provide certain information about their case to the prosecution. But the same concerns are implicated when the State seeks such information, not by force of law, but by surreptitious invasions and deceit.
33
Of equal concern, governmental incursions into confidential lawyer-client communications threaten criminal defendants' right to the effective assistance of counsel. Only last Term we held that the right to counsel encompasses the right to confer with one's lawyer. Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). See also Reynolds v. Cochran, 365 U.S. 525, 531, 81 S.Ct. 723, 726, 5 L.Ed.2d 754 (1961); Hawk v. Olson, 326 U.S. 271, 278, 66 S.Ct. 116, 120, 90 L.Ed. 61 (1945); Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940); Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158 (1932). But "(a)s a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice." Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). See also United States v. Nobles, 422 U.S. 225, 238-239, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975). For this reason, it has long been recognized that "the essence of the Sixth Amendment right is . . . privacy of communication with counsel." United States v. Rosner, 485 F.2d 1213, 1224 (CA2 1973), cert. denied, 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d 672 (1974). See, e. g., Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879 (1953); Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (1951); Louie Yung v. Coleman, 5 F.Supp. 702, 703 (Idaho 1934); cf., e. g., In re Rider, 50 Cal.App. 797, 195 P. 965 (1920); Thomas v. Mills, 117 Ohio St. 114, 157 N.E. 488 (1927); State ex rel. Tucker v. Davis, 9 Okl.Cr. 94, 130 P. 962 (1913); Turner v. State, 91 Tex.Cr.R. 627, 241 S.W. 162 (1922); Annot., 5 A.L.R.3d 1360 (1966).
34
The Court today apparently concludes that neither of these constitutional values is infringed when as here, the State does not act with a purpose to intercept information about the defense, and the information that is uncovered is neither transmitted to the prosecutor nor used by him to the defendant's detriment. I respectfully disagree. In my view, the "balance of forces between the accused and his accuser" is sharply skewed in favor of the accuser if the government's key witnesses are permitted to discover the defense strategy by intercepting attorney-client communications, even if the witnesses cannot divulge the information to the prosecution. With this information, the witnesses are in a position to formulate in advance answers to anticipated questions and even to shade their testimony to meet expected defenses.1 Furthermore, because of these dangers defendants may be deterred from exercising their right to communicate candidly with their lawyers if government witnesses can intrude upon the lawyer-client relationship with impunity so long as they do not discuss what they learn with the prosecutor.2 And insofar as the Sixth Amendment establishes an independent right to confidential communications with a lawyer, that right by definition is invaded when a government agent attends meetings of the defense team at which defense plans are reviewed.3
35
But even if I were to agree that unintended and undisclosed interceptions by government witness-employees affect neither the fairness of trials nor the effectiveness of defense counsel, I still could not join in upholding the practice. For in my view, the precious constitutional rights at stake here, like other constitutional rights, need "breathing space to survive," NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963), and a prophylactic prohibition on all intrusions of this sort is therefore essential. A rule that offers defendants relief only when they can prove "intent" or "disclosure" is, I fear, little better than no rule at all. Establishing that a desire to intercept confidential communications was a factor in a State's decision to keep an agent under cover will seldom be possible, since the State always can argue plausibly that its sole purpose was to continue to enjoy the legitimate services of the undercover agent. Proving that an informer reported to the prosecution on defense strategy will be equally difficult, not only because such proof requires an informer or prosecutor to admit his own wrongdoing (and open the door to damages suits and attacks on convictions), but also because an informer's failure to make a report after overhearing a lawyer-client session oftentimes can be an effective means of communicating to the prosecutor that nothing surprising was uncovered.4 Given these problems of proof, the only way to assure that defendants will feel free to communicate candidly with their lawyers is to prohibit the government from intercepting such confidential communications, at least absent a compelling justification for doing so.5
36
Like the Court of Appeals, and unlike the majority today, I believe a per se rule of this sort is fully supported, if not compelled, by our decisions in Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966), and O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967). In both cases, the United States informed this Court that lawyer-client conversations had been intercepted by surveillance devices installed to investigate crimes unrelated to the crimes for which the defendants were convicted. Memorandum for United States in Black v. United States, O.T. 1965, No. 1029, p. 2; Brief for United States in O'Brien v. United States, O.T. 1966, No. 823, pp. 10-11. In Black the Government reported that information uncovered through the monitoring had been relayed to the prosecutors, but maintained that none of the evidence against the defendant had been derived from the surveillance, and that nothing was learned "which had any effect upon the presentation of the government's case or the fairness of petitioner's trial." Memorandum for United States in Black v. United States, supra, at 4. In O'Brien the Government stated that the only intercepted lawyer-client conversation concerned the terms of the defendant's bail, and that neither this conversation nor any other conversation was disclosed to the prosecuting attorneys. Brief for United States in O'Brien v. United States, supra, at 11. In both cases, the United States urged a remand for a hearing to determine whether the intrusions had tainted the trials. Memorandum for United States in Black v. United States, supra, at 5; Brief for United States in O'Brien v. United States, supra, at 12. Yet in each case this Court rejected that course and instead remanded for a new trial. To say that these cases establish that "when conversations with counsel have been overheard, the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial," ante, at 552, twists the cases beyond recognition.6 That is precisely the principle that was urged by the Government and by the dissenters, Black v. United States, supra, at 30-31, 87 S.Ct. at 192 (Harlan, J., dissenting); O'Brien v. United States, supra, at 346-347, 87 S.Ct., at 1159 (Harlan, J., dissenting), but was rejected by the Court. By vacating the convictions without proof that "the overheard conversations have produced . . . any of the evidence offered at trial," Black and O'Brien establish that "any governmental activity of the kind here in question automatically vitiates . . . any conviction occurring during the span of such activity," Black v. United States, supra, at 31, 87 S.Ct., at 193 (Harlan, J., dissenting), and precludes the use of tainted evidence at any retrial.
37
Rather than retreating from Black and O'Brien, I would reaffirm them and would affirm the judgment of the Court of Appeals.
1
In Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961), the Court had held that eavesdropping accomplished through use of an electronic listening device similar to the "tubular microphone" used to overhear Black's and O'Brien's conversations constituted an unauthorized physical penetration of the petitioners' premises in violation of the Fourth Amendment. The Solicitor General conceded that both Black and O'Brien should have been allowed to establish that the prosecution's case was tainted by the interception of conversations between Black and persons other than their attorneys as well as by conversations involving counsel, thus indicating his awareness of the illegality of the Government's eavesdropping under the Fourth Amendment.
2
See n. 1, supra.
3
Coplon held that interceptions by Government agents of telephone messages between the defendant and her lawyer before and during trial, if proved by the defendant, deprived her of her right to counsel and entitled her to a new trial. Caldwell held that the defendant's right to counsel was violated where a Government undercover agent went to work as an assistant for the defense and reported frequently to the prosecution on "many matters connected with the impending trial." 92 U.S.App.D.C., at 356, 205 F.2d, at 880 (footnote omitted).
4
In Hoffa, the United States conceded, as it does here as amicus curiae, that the Sixth Amendment would be violated "if the government places an informant in the defense camp during a criminal trial and receives from that informant privileged information pertaining to the defense of the criminal charges . . . because the Sixth Amendment's assistance-of-counsel guarantee can be meaningfully implemented only if a criminal defendant knows that his communications with his attorney are private and that his lawful preparations for trial are secure against intrusion by the government, his adversary in the criminal proceeding." Brief for United States in Hoffa v. United States, O.T. 1966, No. 32, p. 71, quoted in Brief for United States as Amicus Curiae in the instant case, p. 24 n. 13.
Respondent argues that Hoffa established the same right-to-counsel standard for government interception of attorney-client communications by an undercover agent as for interception by electronic surveillance. Even apart from the fact that the Court was merely assuming the existence of a right-to-counsel violation in that case, see supra, at 553, we find respondent's argument questionable. One threat to the effective assistance of counsel posed by government interception of attorney-client communications lies in the inhibition of free exchanges between defendant and counsel because of the fear of being overheard. However, a fear that some third party may turn out to be a government agent will inhibit attorney-client communication to a lesser degree than the fear that the government is monitoring those communications through electronic eavesdropping, because the former intrusion may be avoided by excluding third parties from defense meetings or refraining from divulging defense strategy when third parties are present at those meetings. Of course, in some circumstances the ability to exclude third parties from defense meetings may not eliminate the chilling effect on attorney-client exchanges, but neither Hoffa nor any other decision of this Court supports respondent's theory that the chill is the same whether induced by electronic surveillance or by undercover agents. Cf. Fisher v. United States, 425 U.S. 391, 402-405, 96 S.Ct. 1569, 1576-1577, 48 L.Ed.2d 39 (1976) (attorney-client privilege protects only those disclosures which might not have been made absent the privilege, because the purpose of the privilege is to encourage confidential disclosures by a client to an attorney); 8 J. Wigmore, Evidence § 2311, pp. 601-602 (McNaughton rev. ed. 1961) (attorney-client communications in the presence of a third party not the agent of either are generally not protected by the privilege).
5
See App. 225-240 (testimony of Weatherford at state trial). On cross-examination by Wise (Bursey's lawyer), Weatherford acknowledged that at the second meeting with Bursey and Wise, Weatherford told Wise, in response to the latter's questions, that he had not been asked to testify for the prosecution and that he did not anticipate being present at Bursey's trial. This testimony, elicited by defense counsel apparently for the purpose of discrediting Weatherford's testimony on direct examination, obviously does not constitute use by the prosecution of information obtained from Weatherford's attendance at defense meetings. Whatever the limitations on testimony by informants about statements made at defense meetings attended by them, the Sixth Amendment does not prevent the defense from introducing such statements to undercut the effectiveness of the informant's testimony for the prosecution.
6
Because we hold that Bursey's constitutional rights were not violated by Weatherford's actions, we reverse the holding of the Court of Appeals that Weatherford's superior, Strom, was also liable because of his involvement in Weatherford's undercover activities.
1
If, for example, Weatherford had learned that Bursey would use an entrapment defense against whoever admitted to being a government agent, Weatherford could have planned his testimony so as to minimize his own role and emphasize Bursey's predisposition. Bursey, on the other hand, would have had little time to reconstruct in his mind Weatherford's role in the decision to commit the crime once Weatherford testified that he was the state agent. Cf. United States v. Orman, 417 F.Supp. 1126, 1137 (Colo.1976).
2
The Court suggests, ante, at 555 n. 4, that defendants can protect themselves against intrusions by third parties by excluding them from meetings at which defense strategy is discussed. But when, as here, the third party is an indicted codefendant, exclusion is not practicable; codefendants need to be informed of each other's strategy if only to determine whether joinder is prejudicial, cf. Fed.Rule Crim.Proc. 14. Indeed, because of the interdependence of codefendants, communications between a lawyer and his client generally remain privileged even when disclosed to a codefendant or his attorney. See The Attorney-Client Privilege in Multiple Party Situations, 8 Colum.J.Law & Soc.Problems 179 (1972).
3
Of course, the fact that Weatherford did not reveal what he learned may be relevant to the amount of damages Bursey can recover, as the Court of Appeals acknowledged. 528 F.2d 483, 487 (CA4 1975). No damages assessment has been made in this case, however, since the District Court found no liability.
4
In this case, for example, the prosecutor might have assumed that Weatherford had been privy to Bursey's defense plans, and that Weatherford's acquiescence when told of the prosecutor's decision to use him as a witness meant that the defense did not suspect Weatherford or have any damaging information about him.
5
There is no evidence in this record that Weatherford's life would have been jeopardized or any ongoing investigations compromised had Weatherford given up his cover on March 20, 1970, after the crime was committed, rather than on July 27, 1970, after trial began. To the contrary, the fact that Weatherford felt no need for police protection after trial, App. 107, suggests that there was no danger at any time. And the Chief of the South Carolina State Law Enforcement Division conceded that Weatherford was not working on "anything particular" between the time of the crime and the time of the trial. Id., at 125. Indeed the Chief admitted that he "wasn't concerned" about losing Weatherford's cover because after breaking the case "his identity is going to be known anyway." Id., at 124. Thus the only legitimate justification the State had for arresting and indicting Weatherford, and for retaining a lawyer and manufacturing a story for him was to postpone for several months the date at which a new agent would have to be assigned again.
6
The Court's alternative suggestion, ante, at 551-552, that Black and O'Brien were actually Fourth Amendment cases is equally unpersuasive. The briefs in Black, while noting the Fourth Amendment issue, Memorandum for United States 4; Supplemental Memorandum for Petitioner 6, focused on the Sixth Amendment violation, Memorandum for United States 3-4; Supplemental Memorandum for Petitioner 7-20. The opinion does not mention either the Fourth or Sixth Amendment, but the narration of the facts makes clear that the Court's primary concern was the interception of lawyer-client conversations. 385 U.S., at 27-28, 87 S.Ct., at 190-191. Moreover, during the same Term that Black and O'Brien were decided, the Court, in another electronic surveillance case, remanded for a taint hearing rather than for a new trial because, "(u)nlike the situations in Black . . . and O'Brien . . . there was apparently no direct intrusion here into attorney-client discussions." Hoffa v. United States, 387 U.S. 231, 233, 87 S.Ct. 1583, 1584, 18 L.Ed.2d 738 (1967). See also Wolff v. McDonnell, 418 U.S. 539, 576, 94 S.Ct. 2963, 2984, 41 L.Ed.2d 935 (1974) (White, J.) (citing Black and O'Brien as Sixth Amendment cases); Hoffa v. United States, 385 U.S. 293, 307, 87 S.Ct. 408, 416 (1966) (citing Black as Sixth Amendment case).
| 01
|
430 U.S. 141
97 S.Ct. 987
51 L.Ed.2d 224
CITY OF PHILADELPHIA et al., Appellants,v.State of NEW JERSEY et al.
No. 75-1150.
Feb. 23, 1977.
PER CURIAM.
1
This suit challenges the constitutionality of a New Jersey statute prohibiting any person from bringing into New Jersey "any solid or liquid waste which originated or was collected outside the territorial limits of the State" except garbage to be fed to swine. 1973 N.J.Laws, c. 363. The New Jersey Supreme Court held that the Act was not pre-empted by a federal statute addressing questions of waste disposal, the Solid Waste Disposal Act of 1965, 79 Stat. 997, 42 U.S.C. § 3251 et seq. (1970 ed. and Supp. V), and was not unconstitutional as discriminating against or placing an undue burden on interstate commerce. Hackensack Meadowlands Dev. Comm'n v. Muncipal Landfill Authority, 68 N.J. 451, 348 A.2d 505 (1975). We noted probable jurisdiction on April 5, 1976, 425 U.S. 910, 96 S.Ct. 1504, 47 L.Ed.2d 760.
2
On October 21, 1976, the Resource Conservation and Recovery Act of 1976, 90 Stat. 2795, 42 U.S.C. § 6901 et seq. (1976 ed.), became law. The parties at the Court's request supplemented their briefs to address the question of the impact of the new federal statute on the New Jersey Act. Appellants argue that the Federal Act displaces the New Jersey law, and appellees argue that it does not pre-empt or in any way undercut the validity of the New Jersey legislation. While federal pre-emption of state statutes is, of course, ultimately a question under the Supremacy Clause, U.S.Const., Art. VI, cl. 2, analysis of pre-emption issues depends primarily on statutory and not constitutional interpretation. Therefore, it is appropriate that the federal pre-emption issue be resolved before the constitutional issue of alleged discrimination against or undue burden on interstate commerce is addressed. We think it appropriate that we have the views of the New Jersey Supreme Court on the question whether or to what extent the Resource Conservation and Recovery Act of 1976 pre-empts the New Jersey statute. The judgment of the New Jersey Supreme Court is therefore vacated, and the case is remanded for reconsideration in light of that Act.
3
So ordered.
4
Mr. Justice POWELL, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice REHNQUIST join, dissenting.
5
The Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (1976 ed.), evidences a federal concern with the growing problem of waste disposal in this country. This complex statute attempts to deal with this problem in a variety of ways. Because the impact of the statute will depend in part on the regulations promulgated under it, generalizations at this time as to the effect of the statute should be made with caution. But I do think it is abundantly clear from the text of the statute and from its legislative history that Congress did not intend to preempt state laws such as the one at issue here. In its report on the statute the House Committee on Interstate and Foreign Commerce recognized the existence of state laws similar to this New Jersey law. H.R.Rep. No. 94-1491, pp. 3, 10 (1976); U.S.Code Cong. & Admin.News 1976, p. 6238. The report explicitly disclaimed any preemptive intention.
6
"It is the Committee's intention that federal assistance should be an incentive for state and local authorities to act to solve the discarded materials problem. At this time federal preemption of this problem is undesirable, inefficient, and damaging to local initiative." Id., at 33 U.S.Code Cong. & Admin.News 1976, at 6271.
7
In view of this express disclaimer, I do not understand how the Court can assume that pre-emption remains an open question.
8
We should decide this case on the merits and not burden the parties and the Supreme Court of New Jersey by a remand which unnecessarily creates delay, expense, and uncertainty.
| 78
|
430 U.S. 99
97 S.Ct. 980
51 L.Ed.2d 192
Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Petitioner,v.Mister SANDERS.
No. 75-1443.
Argued Jan. 11, 12, 1977.
Decided Feb. 23, 1977.
Syllabus
1. Section 10 of the Administrative Procedure Act (APA), providing generally for judicial review of actions of federal administrative agencies by persons aggrieved by such actions, does not afford an implied grant to district courts of subject-matter jurisdiction to review a decision of the Secretary of Health, Education, and Welfare not to reopen a previously adjudicated claim for social security benefits. An interpretation in favor of jurisdiction is suggested by neither the text nor history of the APA, and would effectively override Congress' recent decision to expand jurisdiction under 28 U.S.C. § 1331(a) by eliminating the amount-in-controversy requirement as a prerequisite to maintaining federal-question actions against federal agencies or officers or employees thereof, while retaining § 205(h) of the Social Security Act as a limitation of such jurisdiction. Pp. 104-107.
2. Nor does § 205(g) of the Social Security Act, which provides that any individual after any "final decision of the Secretary made after a hearing" to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by civil action commenced within 60 days, authorize judicial review of the Secretary's decision, absent a constitutional challenge. A petition to reopen a prior final decision may be denied without a § 205(b) hearing, whereas judicial review under § 205(g) is limited to a final decision "made after a hearing"; moreover, to allow judicial review would frustrate the congressional purpose, evidenced in § 205(g), to impose a 60-day limitation upon review of the Secretary's final decision. Pp. 107-109.
522 F.2d 1167, reversed.
Maurice Rosenberg, New York City, for petitioner.
William A. Kowalski, Scherville, Ind., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The questions for decision are (1) whether § 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706,1 is an independent grant to district courts of subject-matter jurisdiction to review a decision of the Secretary of Health, Education, and Welfare not to reopen a previously adjudicated claim for social security benefits and (2), if not, whether § 205(g) of the Social Security Act2 authorizes judicial review of the Secretary's decision.
2
* Title II of the Social Security Act provides disability benefits for a claimant who demonstrates that he suffers a physical or mental disability within the meaning of the Act and that the disability arose prior to the expiration of his insured status. 42 U.S.C. §§ 416(i), 423. The administrative process is begun when he files a claim with the Social Security Administration. 20 CFR §§ 404.905-404.907 (1976). If the claim is administratively denied, regulations permit administrative reconsideration within a six-month period. §§ 404.909-404.915. Should a request for reconsideration prove unsuccessful, the claimant may, within 60 days, ask for an evidentiary hearing before an administrative law judge, 42 U.S.C. § 405(b) (1970 ed., Supp. V), and a discretionary appeal from an adverse determination of the law judge lies to the Appeals Council. 20 CFR §§ 404.945-404.947 (1976). Finally § 205(g) of the Act, 42 U.S.C. § 405(g), authorizes federal judicial review of "any final decision of the Secretary made after a hearing to which (the claimant) was a party . . . ."
3
The Act and regulations thus create an orderly administrative mechanism, with district court review of the final decision of the Secretary, to assist in the original processing of the more than 7,600,000 claims filed annually with the Administration. See Social Security Administration, The Year in Review The Administration of Social Security Programs 1975, p. 54 (1976). By regulation, however, the administrative scheme provides for additional consideration of the claim. This is in the form of regulations for reopening of the agency determination within specified time limits after the date of initial determination 12 months as a matter of right and four years "upon a finding of good cause," which exists if new material evidence is provided or specific errors are discovered. 20 CFR §§ 404.957(a), (b), 404.958 (1976). Moreover, the regulations permit reopening "(a)t any time" for the purpose of correcting clerical errors or errors on the face of relevant evidence. § 404.957(c)(8).
4
On January 30, 1964, respondent filed his initial claim with the agency for disability payments and disability insurance benefits, alleging inability to work because of epilepsy and blackout spells. The claim proceeded through the several steps of the administrative procedures. An Administrative Law Judge found that respondent was ineligible for benefits on the ground that he had not demonstrated a relevant disability of sufficient severity. The Appeals Council, in June 1966, sustained this decision, and respondent did not pursue judicial review of the Secretary's final decision under § 205(g).
5
Almost seven years later, on March 5, 1973, respondent filed a second claim alleging the same bases for eligibility. His claim was again processed through administrative channels under the Secretary's regulations. The Administrative Law Judge viewed the new application as barred by res judicata, see 20 CFR § 404.937 (1976), but also treated the application as requiring the determination "whether the claimant is entitled to have his prior application reopened . . . ." App. 33-34. Concluding that respondent's evidence was "merely rep(e)titio(u)s and cumulative," id., at 35, and finding no errors on the face of the evidence, ibid., the Administrative Law Judge denied reopening and dismissed the claim.
6
Respondent thereupon filed this action in the District Court for the Northern District of Indiana, challenging the Secretary's decision not to reopen, and resting jurisdiction on § 205(g), 42 U.S.C. § 405(g). The District Court dismissed the complaint on the ground stated in its unpublished memorandum that "this court is without jurisdiction to consider the subject matter of this suit." Pet. for Cert. 13a-14a. The Court of Appeals for the Seventh Circuit reversed. Sanders v. Weinberger, 522 F.2d 1167 (1975). The Court of Appeals agreed that jurisdiction to review a refusal to reopen a claim proceeding on the ground of abuse of discretion was not authorized by the Social Security Act. Id., at 1169. The court held, however, that § 205(h)3 did not limit judicial review to those methods "expressly authorize(d)" by the Social Security Act itself. Therefore, the Court of Appeals concluded that § 10 of the Administrative Procedure Act (APA), which "contains an independent grant of subject-matter jurisdiction, without regard to the amount in controversy", afforded the District Court jurisdiction of respondent's complaint. 522 F.2d, at 1169. We granted certiorari, sub nom. Mathews v. Sanders, 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 829 (1976). We reverse.
II
A.
7
(1, 2) The Court of Appeals acknowledged that its construction of § 10 of the APA as an independent grant of subject-matter jurisdiction is contrary to the conclusion reached by several other Courts of Appeals. 522 F.2d, at 1169. This conflict is understandable. None of the codified statutory sections that constitute § 10 is phrased like the usual grant of jurisdiction to proceed in the federal courts. On the other hand, the statute undoubtedly evinces Congress' intention and understanding that judicial review should be widely available to challenge the actions of federal administrative officials. Consequently, courts4 and commentators5 have sharply divided over whether the statute should be read to provide a distinct basis of jurisdiction for the review of agency actions. Three decisions of this Court arguably have assumed, with little discussion, that the APA is an independent grant of subject-matter jurisdiction. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967); Rusk v. Cort, 369 U.S. 367, 372, 82 S.Ct. 787, 790, 7 L.Ed.2d 809 (1962). However, an Act of Congress enacted since our grant of certiorari in this case now persuades us that the better view is that the APA is not to be interpreted as an implied grant of subject-matter jurisdiction to review agency actions.
8
On October 21, 1976, Congress enacted Pub.L. 94-574, 90 Stat. 2721, which amends 28 U.S.C. § 1331(a) to eliminate the requirement of a specified amount in controversy as a prerequisite to the maintenance of "any (§ 1331) action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity." The obvious effect of this modification, subject only to preclusion-of-review statutes created or retained by Congress, is to confer jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate. We conclude that this amendment now largely undercuts the rationale for interpreting the APA as an independent jurisdictional provision.
9
As noted previously, the actual text of § 10 of the APA nowhere contains an explicit grant of jurisdiction to challenge agency action in the federal courts.6 Furthermore, even the advocates of jurisdiction under the APA acknowledge that there is no basis for concluding that Congress, in enacting § 10 of the APA, actually conceived of the Act in jurisdictional terms. See, e. g., Byse & Fiocca, supra, n. 5, at 328. Thus, the argument in favor of APA jurisdiction rests exclusively on the broad policy consideration that, given the shortcomings of federal mandamus jurisdiction, such a construction is warranted by the rational policy of affording federal judicial review of actions by federal officials acting pursuant to federal law, notwithstanding the absence of the requisite jurisdictional amount. See id., at 330-331; Jaffe, supra, n. 5, at 165. We do not find this argument to be compelling in light of Congress' apparent intention by the 1976 amendment to restructure afresh the scope of federal-question jurisdiction.
10
In amending § 1331, Congress obviously has expressly acted to fill the jurisdictional void created by the pre-existing amount-in-controversy requirement. This new jurisdictional grant was qualified, however, by the retention of § 205(h) as preclusive of actions such as this that arise under the Social Security Act. Read together, the expansion of § 1331, coupled with the retention of § 205(h), apparently expresses Congress' view of the desired contours of federal-question jurisdiction over agency action. A broad reading of the APA in this instance would serve no purpose other than to modify Congress' new jurisdictional enactment by overriding its decision to limit § 1331 through the preservation of § 205(h). Squarely faced with the question of APA jurisdiction for the first time, Congress' explicit entry into the jurisdictional area counsels against our reading the APA as an implied jurisdictional grant designed solely to fill such an interstitial gap in § 1331 jurisdiction. This is particularly so since neither the text nor the history of the APA speaks in favor of such a reading, and the 1976 Congress, in redefining § 1331, appears not to have envisioned the APA as playing any such stopgap role.7
11
We thus conclude that the APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action.
B
12
(3) Respondent contends that notwithstanding the above, the Social Security Act itself, specifically § 205(g), should be construed to authorize judicial review of a final decision of the Secretary not to reopen a claim of benefits. All Courts of Appeals that have considered this contention have rejected it.8 We also agree that § 205(g) cannot be read to authorize judicial review of alleged abuses of agency discretion in refusing to reopen claims for social security benefits.
The pertinent part of § 205(g) provides:
13
"Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days . . .." (Emphasis supplied.)
14
This provision clearly limits judicial review to a particular type of agency action, a "final decision of the Secretary made after a hearing". But a petition to reopen a prior final decision may be denied without a hearing as provided in § 205(b), 42 U.S.C. § 405(b) (1970 ed., Supp. V); see Cappadora v. Celebrezze, 356 F.2d 1, 4 (CA2 1966); Ortego v. Weinberger, 516 F.2d 1005, 1007 (CA5 1975). Indeed, the opportunity to reopen final decisions and any hearing convened to determine the propriety of such action are afforded by the Secretary's regulations and not by the Social Security Act. Moreover, an interpretation that would allow a claimant judicial review simply by filing and being denied a petition to reopen his claim would frustrate the congressional purpose, plainly evidenced in § 205(g), to impose a 60-day limitation upon judicial review of the Secretary's final decision on the initial claim for benefits. 20 CFR § 404.951 (1976). Congress' determination so to limit judicial review to the original decision denying benefits is a policy choice obviously designed to forestall repetitive or belated litigation of stale eligibility claims. Our duty, of course, is to respect that choice.
15
(4) Respondent argues, however, that Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), have rejected this interpretation of § 205(g). We do not agree. It is true that both cases authorized judicial review under § 205(g) of the Secretary's decision to deny or discontinue social security benefits notwithstanding the absence of a prior § 205(b) hearing. In both instances, however, the claimants challenged the Secretary's decisions on constitutional grounds. Constitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions. Furthermore, since federal-question jurisdiction under 28 U.S.C. § 1331 is precluded by § 205(h), Weinberger v. Salfi, supra, 422 U.S. at 761, 95 S.Ct. at 2464, a decision denying § 205(g) jurisdiction in Salfi or Eldridge would effectively have closed the federal forum to the adjudication of colorable constitutional claims. Thus those cases merely adhered to the well-established principle that when constitutional questions are in issue, the availability of judicial review is presumed, and we will not read a statutory scheme to take the "extraordinary" step of foreclosing jurisdiction unless Congress' intent to do so is manifested by " 'clear and convincing' " evidence. 422 U.S., at 762, 95 S.Ct., at 2465; Johnson v. Robison, 415 U.S. 361, 366-67, 94 S.Ct. 1160, 1165-66, 39 L.Ed.2d 389 (1974).
16
This is not one of those rare instances where the Secretary's denial of a petition to reopen is challenged on constitutional grounds. Respondent seeks only an additional opportunity to establish that he satisfies the Social Security Act's eligibility standards for disability benefits. Therefore, § 205(g) does not afford subject-matter jurisdiction in this case.
17
Reversed.
18
Mr. Justice STEVENS took no part in the consideration or decision of this case.
19
Mr. Justice STEWART, with whom THE CHIEF JUSTICE joins, concurring in the judgment.
20
I agree with the Court that Sanders cannot seek judicial review of the Secretary's refusal to reopen a final decision denying social security benefits. I arrive at that conclusion, however, by a somewhat shorter route.
21
Section 205(h) of the Social Security Act, 42 U.S.C. § 405(h), states in full:
22
"The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under (§ 1331 et seq. ) of Title 28 to recover on any claim arising under this subchapter."
23
It is clear that the determination not to reopen the prior decision denying benefits to Sanders was a "findin(g) of fact or decision of the Secretary." The conclusion is thus inescapable, as I see it, that the administrative decision before us is not to "be reviewed by any person, tribunal, or governmental agency except as herein provided" that is, except as the Social Security Act itself, specifically in § 205(g), 42 U.S.C. § 405(g), authorizes review. Although the apparent literal meaning of statutory language is not an unfailing guide to the meaning of a congressional enactment, I can see no reason in this case why the second sentence of § 205(h) should not be read to mean exactly what it says that the decision before us is reviewable under § 205(g) or not at all.
24
The Court's decision in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522, supports this reading of § 205(h). Salfi held that the first two sentences of § 205(h) "prevent review of decisions of the Secretary save as provided in the Act, which provision is made in § (2)05(g)." 422 U.S., at 757, 95 S.Ct., at 2463. Although Salfi was principally concerned with an assertion of jurisdiction under 28 U.S.C. § 1331, the plaintiffs there, like Sanders, also relied upon § 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. See Brief for Appellants 17 n. 13, Brief for Appellees 42, and App. 7, in Weinberger v. Salfi, O.T. 1974, No. 74-214. Yet the Court ruled that, as to those plaintiffs who could not seek review under § 205(g), the District Court should have dismissed the complaint because "(o)ther sources of jurisdiction (were) foreclosed by § (2)05(h)." 422 U.S., at 764, 95 S.Ct., at 2466.*
25
Thus, I see no reason at all in this case to consider whether § 10 of the APA in general confers subject-matter jurisdiction upon the district courts to review federal administrative action. For even if it does, § 205(h) specifically and unequivocally limits Sanders and others in his position to whatever jurisdiction is provided under § 205(g). And as the Court today explains, ante, at 107-109, there is clearly no jurisdiction under the latter provision to review the Secretary's refusal to reopen the decision denying benefits to Sanders.
26
Accordingly, I concur in the judgment.
1
The pertinent provisions of § 10, as codified in 5 U.S.C. §§ 701-704, are the following:
"§ 701. Application; definitions.
"(a) This chapter applies, according to the provisions thereof, except to the extent that
"(1) statutes preclude judicial review; or
"(2) agency action is committed to agency discretion by law."
"§ 702. Right of review.
"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."
"§ 703. Form and venue of proceeding.
"The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement." (Sections 702 and 703 were amended by Pub.L. 94-574, 90 Stat. 2721, in respects to be discussed infra, at 105-107, insofar as it modifies the scope of jurisdiction under 28 U.S.C. § 1331.)
"§ 704. Actions reviewable.
"Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsiderations, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority."
2
Section 205(g) of the Social Security Act, 49 Stat. 620, as added and amended, 42 U.S.C. § 405(g), provides in pertinent part:
"Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. . . . "
3
Section 205(h) of the Social Security Act, 42 U.S.C. § 405(h), provides:
"The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under (§ 1331 et seq. ) of Title 28 to recover on any claim arising under this subchapter."
This section has been held to require the exhaustion of available administrative procedures, to foreclose jurisdiction under the general grant of federal-question jurisdiction, 28 U.S.C. § 1331, and to route review through § 205(g). See Weinberger v. Salfi, 422 U.S. 749, 757, 761, 95 S.Ct. 2457, 2463, 2464, 45 L.Ed.2d 522 (1975).
4
The Courts of Appeals for the First, Fourth, Fifth, Seventh, Ninth, Tenth, and District of Columbia Circuits have held that § 10 of the APA is an independent grant of jurisdiction. See Bradley v. Weinberger, 483 F.2d 410 (CA1 1973); Deering Milliken, Inc. v. Johnston, 295 F.2d 856 (CA4 1961); Ortego v. Weinberger, 516 F.2d 1005 (CA5 1975); Sanders v. Weinberger, 522 F.2d 1167 (CA7 1975) (case below); Brandt v. Hickel, 427 F.2d 53 (CA9 1970); Brennan v. Udall, 379 F.2d 803 (CA10 1967); Pickus v. United States Board of Parole, 165 U.S.App.D.C. 284, 507 F.2d 1107 (1974). The Courts of Appeals for the Third, Sixth, and Eighth Circuits disagree. Zimmerman v. United States, 422 F.2d 326 (CA3 1970); Bramblett v. Desobry, 490 F.2d 405 (CA6 1974); Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (CA8 1967). The Court of Appeals for the Second Circuit views the question as unsettled. See South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910 (1976).
5
Compare, e. g., Byse & Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and "Nonstatutory" Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308 (1967), K. Davis, Administrative Law Treatise § 23.02 (Supp.1976), and L. Jaffe, Judicial Control of Administrative Action 165 (1965) (all advocating APA jurisdiction), with Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich.L.Rev. 389 (1970), and C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure: Jurisdiction § 3568 (1975) (rejecting APA jurisdiction).
6
Title 5 U.S.C. § 702 makes clear that a person wronged by agency action "is entitled to judicial review thereof." But § 703 suggests that this language was not intended as an independent jurisdictional foundation, since such judicial review is to proceed "in a court specified by statute" or "in a court of competent jurisdiction." Both of these clauses seem to look to outside sources of jurisdictional authority. Thus, at best, the text of § 10 is ambiguous in providing a separate grant of subject-matter jurisdiction.
7
Respondent argues that Congress intended its modification of § 1331 to be supplementary to the APA, and, therefore, contemplated that the APA would remain as a distinct jurisdictional provision. But the contrary seems true, for the legislative history suggests that Congress believed that the APA does not confer jurisdiction over administrative action, and, therefore, deletion of the jurisdictional amount from § 1331 was warranted. This understanding was made explicit by the Senate Judiciary Committee: "An anomaly in Federal jurisdiction prevents an otherwise competent United States district court from hearing certain cases seeking 'nonstatutory' review of Federal administrative action, absent the jurisdictional amount in controversy required by 28 U.S.C. section 1331, the general 'Federal question' provision. These cases 'arise under' the Federal Constitution or Federal statutes, and the committee believes they are appropriate matters for the exercise of Federal judicial power regardless of the monetary amount involved." S.Rep.No. 94-996, p. 12 (1976) (emphasis supplied); see H.R.Rep.No. 94-1656, p. 13 (1976); U.S.Code Cong. & Admin.News 1976, p. 6121.
8
See Cappadora v. Celebrezze, 356 F.2d 1, 4-5 (CA2 1966); Davis v. Richardson, 460 F.2d 772, 775 (CA3 1972); Ortego v. Weinberger, 516 F.2d, at 1007-1008; Maddox v. Richardson, 464 F.2d 617, 621 (CA6 1972); Stuckey v. Weinberger, 488 F.2d 904, 909 (CA9 1973); Neighbors v. Secretary of Health, Education, and Welfare, 511 F.2d 80, 81 (CA10 1974).
*
The Salfi Court's treatment of the first two sentences of § 205(h) as requiring the exhaustion of administrative remedies, 422 U.S., at 757, 95 S.Ct., at 2463, is in no way inconsistent with a reading of the second sentence of § 205(h) as precluding review outside of § 205(g). That sentence simply requires that all review take place within the confines of the procedural scheme established by § 205(g). Section 205(h) thus bars attempts to circumvent those procedures, whether by seeking review under § 205(g) without having fulfilled the exhaustion requirement, or by seeking review under some other jurisdictional grant that does not prescribe the administrative steps that must first be taken.
| 89
|
430 U.S. 140
97 S.Ct. 1166
51 L.Ed.2d 228
UNITED STATES, plaintiff,v.States of FLORIDA and Texas
No. 54
Supreme Court of the United States
February 23, 1977
Feb. 23, 1977. PER CURIAM.
1
The exceptions of the States of Florida and Texas to the Report of the Special Master, 429 U.S. 810, 97 S.Ct. 48, 50 L.Ed.2d 70 (1976), are overruled and the motion for leave to file a counterclaim is denied.
| 910
|
430 U.S. 112
97 S.Ct. 965
51 L.Ed.2d 204
E. I. du PONT de NEMOURS AND COMPANY et al., Petitioners,v.Russell E. TRAIN, Administrator, Environmental Protection Agency, et al. E. I. du PONT de NEMOURS AND COMPANY et al., Petitioners, v. Russell E. TRAIN, Administrator, Environmental Protection Agency. Russell E. TRAIN, Administrator, Environmental Protection Agency, Petitioner, v. E. I. du PONT de NEMOURS AND COMPANY et al.
Nos. 75-978, 75-1473 and 75-1705.
Argued Dec. 8, 1976.
Decided Feb. 23, 1977.
Syllabus
The Federal Water Pollution Control Act Amendments of 1972 (Amendments) authorized a series of steps to be taken to eliminate all discharges of pollutants into the Nation's waters by 1985. The first steps are described in § 304 of the Act (as added by the Amendments), which directs the Administrator of the Environmental Protection Agency (EPA) (the agency charged under § 101 with administering the Amendments) to develop and publish various kinds of technical data as guidelines for carrying out responsibilities under the Amendments. Section 301(a) proscribes the discharge of any pollutant unless the discharge complies with certain sections, including § 301 itself, § 306, and § 402. Section 301(b) defines the effluent limitations that must be achieved for existing "point sources" (conveyances from which pollutants are discharged) in two stages: (1) No later than July 1, 1977, such limitations for point sources must require the application of the "best practicable control technology currently available," and (2) by July 1, 1983, the limitations for "categories and classes of point sources" must require application of the "best available technology economically achievable." Section 301(c) authorizes the EPA Administrator to grant variances for the 1983 limitations for any point source for which a permit application is filed after July 1, 1977. Section 306(b) directs the Administrator to publish regulations establishing national standards for new sources within each category of sources discharging pollutants, and § 306(e) makes it unlawful to operate a new source in violation of the applicable standard. Section 402 authorizes the Administrator to issue permits for individual point sources, and also to review and approve the plan of any State desiring to administer its own permit program. Section 509(b)(1)(E) provides that review of the Administrator's action in approving or promulgating any effluent limitation under § 301 or s 306 may be had in the courts of appeals. The EPA, which is empowered under § 501(a) to make "such regulations as are necessary to carry out" its functions, promulgated industrywide regulations imposing three sets of limitations on petitioner inorganic chemical manufacturers' discharges of pollutants into waters. The first two impose progressively higher levels of pollutant control on existing point sources (a) after July 1, 1977, and (b) after July 1, 1983, and the third set imposes limits on "new sources" that may be constructed in the future. Petitioner manufacturers filed both a suit in the District Court to set aside the regulations and a petition for review of the regulations in the Court of Appeals, contending that § 301 is not an independent source of authority for setting effluent limitations by regulation but is merely a description of such limitations which are set for each plant on an individual basis during the permit-issuance process, and that § 402 provides the only authority for issuance of enforceable limitations on the discharge of pollutants by existing plants. The Court of Appeals affirmed the District Court's dismissal of the suit to set aside the regulations on the ground that the Court of Appeals had exclusive jurisdiction to consider the validity of the regulations, and held on the petition for review that the EPA was authorized to issue "presumptively applicable" effluent limitations and new source standards, and was required to provide a variance procedure for new sources. Held :
1. The EPA has authority under § 301 to limit discharges by existing plants through industrywide regulations setting forth uniform effluent limitations for both 1977 and 1983, provided some allowance is made for variations in individual plants. Pp. 126-136.
(a) Both the language of § 301 and the legislative history of the Amendments support the view that § 301 limitations are to be adopted by the Administrator, that they are to based primarily on classes and categories, and that they are to take the form of regulations. Pp. 126-130.
(b) The legislative history also makes it clear that § 304 guidelines are not merely aimed at guiding the discretion of permit issuers in setting limitations for individual plants, but § 304 requires that the guidelines survey the practicable or available pollution control technology for an industry and assess its effectiveness, and then describe the methodology the EPA intends to use in the § 301 regulations to determine the effluent limitations for particular plants. Pp. 130-132.
(c) The above construction of the Amendments is also supported by §§ 101(d) and 501(a). Pp. 132-133.
2. Section 509(b)(1)(E) unambiguously authorizes court of appeals review of EPA action promulgating an effluent limitation for existing point sources under § 301, and the reference in § 509(b)(1)(E) to § 301 was not intended only to provide for review of the grant or denial of an individual variance under § 301(c). Since effluent limitations are typically promulgated in the same proceeding as the new-source standards under § 306, there is no doubt that Congress intended review of the two sets of regulations to be had in the same forum. Pp. 136-137.
3. Variances for individual plants unable to comply with the new-source standards issued under § 306 are not authorized. Congress clearly intended regulations under § 306 to be absolute prohibitions, as is indicated by the use of the word "standards" in § 306, as well as by the description of the preferred standard as one "permitting no discharge of pollutants." Pp. 137-139.
No. 75-978, 528 F.2d 1136, affirmed; Nos. 75-1473 and 75-1705, 541 F.2d 1018, affirmed in part and reversed in part.
Robert C. Barnard, Washington, D. C., for E. I. duPont de Nemours & Co. and others.
Daniel M. Friedman, Washington, D. C., for Russell E. Train, etc., and others.
Mr. Justice STEVENS delivered the opinion of the Court.
1
Inorganic chemical manufacturing plants operated by the eight petitioners in Nos. 75-978 and 75-1473 discharge various pollutants into the Nation's waters and therefore are "point sources" within the meaning of the Federal Water Pollution Control Act (Act), as added and amended by § 2 of the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, 33 U.S.C. § 1251 et seq. (1970 ed., Supp. V).1 The Environmental Protection Agency2 has promulgated industry-wide regulations imposing three sets of precise limitations on petitioners' discharges. The first two impose progressively higher levels of pollutant control on existing point sources after July 1, 1977, and after July 1, 1983, respectively. The third set imposes limits on "new sources" that may be constructed in the future.3
2
These cases present three important questions of statutory construction: (1) whether EPA has the authority under § 301 of the Act to issue industrywide regulations limiting discharges by existing plants; (2) whether the Court of Appeals, which admittedly is authorized to review the standards for new sources, also has jurisdiction under § 509 to review the regulations concerning existing plants; and (3) whether the new-source standards issued under § 306 must allow variances for individual plants.
3
As a preface to our discussion of these three questions, we summarize relevant portions of the statute and then describe the procedure which EPA followed in promulgating the challenged regulations.
The Statute
4
The statute, enacted on October 18, 1972, authorized a series of steps to be taken to achieve the goal of eliminating all discharges of pollutants into the Nation's waters by 1985, § 101(a)(1).
5
The first steps required by the Act are described in § 304, which directs the Administrator to develop and publish various kinds of technical data to provide guidance in carrying out responsibilities imposed by other sections of the Act. Thus, within 60 days, 120 days, and 180 days after the date of enactment, the Administrator was to promulgate a series of guidelines to assist the States in developing and carrying out permit programs pursuant to § 402. §§ 304(h), (f), (g). Within 270 days, he was to develop the information to be used in formulating standards for new plants pursuant to § 306. § 304(c). And within one year he was to publish regulations providing guidance for effluent limitations on existing point sources. Section 304(b)4 goes into great detail concerning the contents of these regulations. They must identify the degree of effluent reduction attainable through use of the best practicable or best available technology for a class of plants. The guidelines must also "specify factors to be taken into account" in determining the control measures applicable to point sources within these classes. A list of factors to be considered then follows. The Administrator was also directed to develop and publish, within one year, elaborate criteria for water quality accurately reflecting the most current scientific knowledge, and also technical information on factors necessary to restore and maintain water quality. § 304(a). The title of § 304 describes it as the "information and guidelines" portion of the statute.
6
Section 301 is captioned "effluent limitations."5 Section 301(a) makes the discharge of any pollutant unlawful unless the discharge is in compliance with certain enumerated sections of the Act. The enumerated sections which are relevant to this case are § 301 itself, § 306, and § 402.6 A brief word about each of these sections is necessary.
7
Section 4027 authorizes the Administrator to issue permits for individual point sources, and also authorizes him to review and approve the plan of any State desiring to administer its own permit program. These permits serve "to transform generally applicable effluent limitations . . . into the obligations (including a timetable for compliance) of the individual discharger(s) . . . ." EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578. Petitioner chemical companies' position in this litigation is that § 402 provides the only statutory authority for the issuance of enforceable limitations on the discharge of pollutants by existing plants. It is noteworthy, however, that although this section authorizes the imposition of limitations in individual permits, the section itself does not mandate either the Administrator or the States to use permits as the method of prescribing effluent limitations.
8
Section 3068 directs the Administrator to publish within 90 days a list of categories of sources discharging pollutants and, within one year thereafter, to publish regulations establishing national standards of performance for new sources within each category. Section 306 contains no provision for exceptions from the standards for individual plants; on the contrary, subsection (e) expressly makes it unlawful to operate a new source in violation of the applicable standard of performance after its effective date. The statute provides that the new-source standards shall reflect the greatest degree of effluent reduction achievable through application of the best available demonstrated control technology.
9
Section 301(b) defines the effluent limitations that shall be achieved by existing point sources in two stages. By July 1, 1977, the effluent limitations shall require the application of the best practicable control technology currently available; by July 1, 1983, the limitations shall require application of the best available technology economically achievable. The statute expressly provides that the limitations which are to become effective in 1983 are applicable to "categories and classes of point sources"; this phrase is omitted from the description of the 1977 limitations. While § 301 states that these limitations "shall be achieved," it fails to state who will establish the limitations.
10
Section 301(c) authorizes the Administrator to grant variances from the 1983 limitations. Section 301(e) states that effluent limitations established pursuant to § 301 shall be applied to all point sources.
11
To summarize, § 301(b) requires the achievement of effluent limitations requiring use of the "best practicable" or "best available" technology. It refers to § 304 for a definition of these terms. Section 304 requires the publication of "regulations, providing guidelines for effluent limitations." Finally, permits issued under § 402 must require compliance with § 301 effluent limitations. Nowhere are we told who sets the § 301 effluent limitations, or precisely how they relate to § 304 guidelines and § 402 permits. The Regulations
12
The various deadlines imposed on the Administrator were too ambitious for him to meet. For that reason, the procedure which he followed in adopting the regulations applicable to the inorganic chemical industry and to other classes of point sources is somewhat different from that apparently contemplated by the statute. Specifically, as will appear, he did not adopt guidelines pursuant to § 304 before defining the effluent limitations for existing sources described in § 301(b) or the national standards for new sources described in § 306. This case illustrates the approach the Administrator followed in implementing the Act.
13
EPA began by engaging a private contractor to prepare a Development Document. This document provided a detailed technical study of pollution control in the industry. The study first divided the industry into categories. For each category, present levels of pollution were measured and plants with exemplary pollution control were investigated. Based on this information, other technical data, and economic studies, a determination was made of the degree of pollution control which could be achieved by the various levels of technology mandated by the statute. The study was made available to the public and circulated to interested persons. It formed the basis of "effluent limitation guideline" regulations issued by EPA after receiving public comment on proposed regulations. These regulations divide the industry into 22 subcategories. Within each subcategory, precise numerical limits are set for various pollutants.9 The regulations for each subcategory contain a variance clause, applicable only to the 1977 limitations.10
14
Eight chemical companies filed petitions in the United States Court of Appeals for the Fourth Circuit for review of these regulations.11 The Court of Appeals rejected their challenge to EPA's authority to issue precise, single-number limitations for discharges of pollutants from existing sources. It held, however, that these limitations and the new plant standards were only "presumptively applicable" to individual plants.12 We granted the chemical companies' petitions for certiorari in order to consider the scope of EPA's authority to issue existing-source regulations. 425 U.S. 933, 96 S.Ct. 1662, 48 L.Ed.2d 174; 426 U.S. 947, 96 S.Ct. 3165, 49 L.Ed.2d 1183. We also granted the Government's cross-petition for review of the ruling that new-source standards are only presumptively applicable. Ibid. For convenience, we will refer to the chemical companies as the "petitioners."
15
The broad outlines of the parties' respective theories may be stated briefly. EPA contends that § 301(b) authorizes it to issue regulations establishing effluent limitations for classes of plants. The permits granted under § 402, in EPA's view, simply incorporate these across-the-board limitations, except for the limited variances allowed by the regulations themselves and by § 301(c). The § 304(b) guidelines, according to EPA, were intended to guide it in later establishing § 301 effluent-limitation regulations. Because the process proved more time consuming than Congress assumed when it established this two-stage process, EPA condensed the two stages into a single regulation.13
16
In contrast, petitioners contend that § 301 is not an independent source of authority for setting effluent limitations by regulation. Instead, § 301 is seen as merely a description of the effluent limitations which are set for each plant on an individual basis during the permit-issuance process. Under the industry view, the § 304 guidelines serve the function of guiding the permit issuer in setting the effluent limitations.
17
The jurisdictional issue is subsidiary to the critical question whether EPA has the power to issue effluent limitations by regulation. Section 509(b)(1), 86 Stat. 892, 33 U.S.C. § 1369(b)(1), provides that "(r)eview of the Administrator's action . . . (E) in approving or promulgating any effluent limitation . . . under section 301" may be had in the courts of appeals. On the other hand, the Act does not provide for judicial review of § 304 guidelines. If EPA is correct that its regulations are "effluent limitation(s) under section 301," the regulations are directly reviewable in the Court of Appeals. If industry is correct that the regulations can only be considered § 304 guidelines, suit to review the regulations could probably be brought only in the District Court, if anywhere.14 Thus, the issue of jurisdiction to review the regulations is intertwined with the issue of EPA's power to issue the regulations.15
18
* We think § 301 itself is the key to the problem. The statutory language concerning the 1983 limitation, in particular, leaves no doubt that these limitations are to be set by regulation. Subsection (b)(2)(A) of § 301 states that by 1983 "effluent limitations for categories and classes of point sources" are to be achieved which will require "application of the best available technology economically achievable for such category or class." (Emphasis added.) These effluent limitations are to require elimination of all discharges if "such elimination is technologically and economically achievable for a category or class of point sources." (Emphasis added.) This is "language difficult to reconcile with the view that individual effluent limitations are to be set when each permit is issued." American Meat Institute v. EPA, 526 F.2d 442, 450 (C.A.7 1975). The statute thus focuses expressly on the characteristics of the "category or class" rather than the characteristics of individual point sources.16 Normally, such classwide determinations would be made by regulation, not in the course of issuing a permit to one member of the class.17
19
Thus, we find that § 301 unambiguously provides for the use of regulations to establish the 1983 effluent limitations. Different language is used in § 301 with respect to the 1977 limitations. Here, the statute speaks of "effluent limitations for point sources," rather than "effluent limitations for categories and classes of point sources." Nothing elsewhere in the Act, however, suggests any radical difference in the mechanism used to impose limitations for the 1977 and 1983 deadlines. See American Iron & Steel Institute v. EPA, 526 F.2d 1027, 1042 n.32 (C.A.3 1975). For instance, there is no indication in either § 301 or s 304 that the § 304 guidelines play a different role in setting 1977 limitations. Moreover, it would be highly anomalous if the 1983 regulations and the new-source standards18 were directly reviewable in the Court of Appeals, while the 1977 regulations based on the same administrative record were reviewable only in the District Court. The magnitude and highly technical character of the administrative record involved with these regulations makes it almost inconceivable that Congress would have required duplicate review in the first instance by different courts. We conclude that the statute authorizes the 1977 limitations as well as the 1983 limitations to be set by regulation, so long as some allowance is made for variations in individual plants, as EPA has done by including a variance clause in its 1977 limitations.19
20
The question of the form of § 301 limitations is tied to the question whether the Act requires the Administrator or the permit issuer to establish the limitations. Section 301 does not itself answer this question, for it speaks only in the passive voice of the achievement and establishment of the limitations. But other parts of the statute leave little doubt on this score. Section 304(b) states that "(f)or the purpose of adopting or revising effluent limitations . . . the Administrator shall" issue guideline regulations; while the judicial-review section, § 509(b)(1), speaks of "the Administrator's action . . . in approving or promulgating any effluent limitation or other limitation under section 301 . . .." See infra, at 136-137. And § 101(d) requires us to resolve any ambiguity on this score in favor of the Administrator. It provides that "(e)xcept as otherwise expressly provided in this Act, the Administrator of the Environmental Protection Agency . . . shall administer this Act." (Emphasis added.) In sum, the language of the statute supports the view that § 301 limitations are to be adopted by the Administrator, that they are to be based primarily on classes and categories, and that they are to take the form of regulations.
21
The legislative history supports this reading of § 301. The Senate Report states that "pursuant to subsection 301(b)(1)(A), and Section 304(b)" the Administrator is to set a base level for all plants in a given category, and "(i)n no case . . . should any plant be allowed to discharge more pollutants per unit of production than is defined by that base level." S.Rep. No. 92-414, p. 50 (1971), Leg.Hist. 1468;20 U.S.Code Cong. & Admin.News 1972, pp. 3668, 3716. The Conference Report on § 301 states that "the determination of the economic impact of an effluent limitation (will be made) on the basis of classes and categories of point sources, as distinguished from a plant by plant determination." Sen.Conf.Rep. No. 92-1236, p. 121 (1972), Leg.Hist. 304; U.S.Code Cong. & Admin.News 1972, p. 3799. In presenting the Conference Report to the Senate, Senator Muskie, perhaps the Act's primary author, emphasized the importance of uniformity in setting § 301 limitations. He explained that this goal of uniformity required that EPA focus on classes or categories of sources in formulating effluent limitations. Regarding the requirement contained in § 301 that plants use the "best practicable control technology" by 1977, he stated:
22
"The modification of subsection 304(b)(1) is intended to clarify what is meant by the term 'practicable.' The balancing test between total cost and effluent reduction benefits is intended to limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving such marginal level of reduction for any class or category of sources.
23
"The Conferees agreed upon this limited cost-benefit analysis in order to maintain uniformity within a class and category of point sources subject to effluent limitations, and to avoid imposing on the Administrator any requirement to consider the location of sources within a category or to ascertain water quality impact of effluent controls, or to determine the economic impact of controls on any individual plant in a single community." 118 Cong.Rec. 33696 (1972), Leg.Hist. 170 (emphasis added).
He added that:
24
"The Conferees intend that the factors described in section 304(b) be considered only within classes or categories of point sources and that such factors not be considered at the time of the application of an effluent limitation to an individual point source within such a category or class." 118 Cong.Rec. 33697 (1972), Leg.Hist. 172.
25
This legislative history supports our reading of § 301 and makes it clear that the § 304 guidelines are not merely aimed at guiding the discretion of permit issuers in setting limitations for individual plants.
26
What, then, is the function of the § 304(b) guidelines? As we noted earlier, § 304(b) requires EPA to identify the amount of effluent reduction attainable through use of the best practicable or available technology and to "specify factors to be taken into account" in determining the pollution control methods "to be applicable to point sources . . . within such categories or classes." These guidelines are to be issued "(f)or the purpose of adopting or revising effluent limitations under this Act."21 As we read it, § 304 requires that the guidelines survey the practicable or available pollution-control technology for an industry and assess its effectiveness. The guidelines are then to describe the methodology EPA intends to use in the § 301 regulations to determine the effluent limitations for particular plants. If the technical complexity of the task had not prevented EPA from issuing the guidelines within the statutory deadline,22 they could have provided valuable guidance to permit issuers, industry, and the public, prior to the issuance of the § 301 regulations.23
27
Our construction of the Act is supported by § 501(a), which gives EPA the power to make "such regulations as are necessary to carry out" its functions, and by § 101(d), which charges the agency with the duty of administering the Act. In construing this grant of authority, as Mr. Justice Harlan wrote in connection with a somewhat similar problem:
28
" '(C)onsiderations of feasibility and practicality are certainly germane' to the issues before us. Bowles v. Willingham, (321 U.S. 503, at 517, 64 S.Ct. 641, at 648, 88 L.Ed. 892). We cannot, in these circumstances, conclude that Congress has given authority inadequate to achieve with reasonable effectiveness the purposes for which it has acted." Permian Basin Area Rate Cases, 390 U.S. 747, 777, 88 S.Ct. 1344, 1365, 20 L.Ed.2d 312.
29
The petitioners' view of the Act would place an impossible burden on EPA. It would require EPA to give individual consideration to the circumstances of each of the more than 42,000 dischargers who have applied for permits, Brief for Respondents in No. 75-978, p. 30 n.22, and to issue or approve all these permits well in advance of the 1977 deadline in order to give industry time to install the necessary pollution-control equipment. We do not believe that Congress would have failed so conspicuously to provide EPA with the authority needed to achieve the statutory goals.
30
Both EPA and petitioners refer to numerous other provisions of the Act and fragments of legislative history in support of their positions. We do not find these conclusive, and little point would be served by discussing them in detail. We are satisfied that our reading of § 301 is consistent with the rest of the legislative scheme.24 Language we recently employed in another case involving the validity of EPA regulations applies equally to this case:
31
"We therefore conclude that the Agency's interpretation . . . was 'correct,' to the extent that it can be said with complete assurance that any particular interpretation of a complex statute such as this is the 'correct' one. Given this conclusion, as well as the facts that the Agency is charged with administration of the Act, and that there has undoubtedly been reliance upon its interpretation by the States and other parties affected by the Act, we have no doubt whatever that its construction was sufficiently reasonable to preclude the Court of Appeals from substituting its judgment for that of the Agency." Train v. Natural Resources Def. Council, 421 U.S. 60, 87, 95 S.Ct. 1470, 1485, 43 L.Ed.2d 731.25
32
When, as in this litigation, the Agency's interpretation is also supported by thorough, scholarly opinions written by some of our finest judges, and has received the overwhelming support of the Courts of Appeals, we would be reluctant indeed to upset the Agency's judgment. Here, on the contrary, our independent examination confirms the correctness of the Agency's construction of the statute.26
33
Consequently, we hold that EPA has the authority to issue regulations setting forth uniform effluent limitations for categories of plants.
II
34
Our holding that § 301 does authorize the Administrator to promulgate effluent limitations for classes and categories of existing point sources necessarily resolves the jurisdictional issue as well. For, as we have already pointed out, § 509(b)(1) provides that "(r)eview of the Administrator's action . . . in approving or promulgating any effluent limitation or other limitation under section 301, 302, or 306, . . . may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business . . .."
35
Petitioners have argued that the reference to § 301 was intended only to provide for review of the grant or denial of an individual variance pursuant to § 301(c). We find this argument unpersuasive for two reasons in addition to those discussed in Part I of this opinion. First, in other portions of § 509, Congress referred to specific subsections of the Act and presumably would have specifically mentioned § 301(c) if only action pursuant to that subsection were intended to be reviewable in the court of appeals. More importantly, petitioners' construction would produce the truly perverse situation in which the court of appeals would review numerous individual actions issuing or denying permits pursuant to § 402 but would have no power of direct review of the basic regulations governing those individual actions. See American Meat Institute v. EPA, 526 F.2d, at 452.
36
We regard § 509(b)(1)(E) as unambiguously authorizing court of appeals review of EPA action promulgating an effluent limitation for existing point sources under § 301. Since those limitations are typically promulgated in the same proceeding as the new-source standards under § 306, we have no doubt that Congress intended review of the two sets of regulations to be had in the same forum.27
III
37
The remaining issue in this case concerns new plants. Under § 306, EPA is to promulgate "regulations establishing Federal standards of performance for new sources . . .." § 306(b)(1)(B). A "standard of performance" is a "standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology, . . . including, where practicable, a standard permitting no discharge of pollutants." § 306(a)(1). In setting the standard, "(t)he Administrator may distinguish among classes, types, and sizes within categories of new sources . . . and shall consider the type of process employed (including whether batch or continuous)." § 306(b)(2). As the House Report states, the standard must reflect the best technology for "that category of sources, and for class, types, and sizes within categories." H.R.Rep. No. 92-911, p. 111 (1972), Leg.Hist. 798.
The Court of Appeals held:
38
"Neither the Act nor the regulations contain any variance provision for new sources. The rule of presumptive applicability applies to new sources as well as existing sources. On remand EPA should come forward with some limited escape mechanism for new sources." Du Pont II, 541 F.2d, at 1028.
39
The court's rationale was that "(p)rovisions for variances, modifications, and exceptions are appropriate to the regulatory process." Ibid.
40
The question, however, is not what a court thinks is generally appropriate to the regulatory process; it is what Congress intended for these regulations. It is clear that Congress intended these regulations to be absolute prohibitions. The use of the word "standards" implies as much. So does the description of the preferred standard as one "permitting no discharge of pollutants." (Emphasis added.) It is "unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source." § 306(e) (emphasis added). In striking contrast to § 301(c), there is no statutory provision for variances, and a variance provision would be inappropriate in a standard that was intended to insure national uniformity and "maximum feasible control of new sources." S.Rep. No. 92-414, p. 58 (1971), Leg.Hist. 1476.28
41
That portion of the judgment of the Court of Appeals in 541 F.2d 1018 requiring EPA to provide a variance procedure for new sources is reversed. In all other aspects, the judgments of the Court of Appeals are affirmed.
42
It is so ordered.
43
Mr. Justice POWELL took no part in the consideration or decision of these cases.
1
A "point source" is "any discernible, confined and discrete conveyance, . . . from which pollutants are or may be discharged." § 502(14), 33 U.S.C. § 1362(14) (1970 ed., Supp. V).
2
Throughout this opinion we will refer interchangeably to the Administrator of the EPA and to the Agency itself.
3
The reasons for the statutory scheme have been described as follows:
"Such direct restrictions on discharges facilitate enforcement by making it unnecessary to work backward from an overpolluted body of water to determine which point sources are responsible and which must be abated. In addition, a discharger's performance is now measured against strict technology-based effluent limitations specified levels of treatment to which it must conform, rather than against limitations derived from water quality standards to which it and other polluters must collectively conform." EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 204-205, 96 S.Ct. 2022, 2024, 48 L.Ed.2d 578 (footnotes omitted).
4
Section 304(b) provides:
"(b) For the purpose of adopting or revising effluent limitations under this Act the Administrator shall, after consultation with appropriate Federal and State agencies and other interested persons, publish within one year of enactment of this title, regulations, providing guidelines for effluent limitations, and, at least annually thereafter, revise, if appropriate, such regulations. Such regulations shall
"(1)(A) identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable through the application of the best practicable control technology currently available for classes and categories of point sources (other than publicly owned treatment works); and
"(B) specify factors to be taken into account in determining the control measures and practices to be applicable to point sources (other than publicly owned treatment works) within such categories or classes. Factors relating to the assessment of best practicable control technology currently available to comply with subsection (b)(1) of section 301 of this Act shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, and shall also take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate;
"(2)(A) identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable through the application of the best control measures and practices achievable including treatment techniques, process and procedure innovations, operating methods, and other alternatives for classes and categories of point sources (other than publicly owned treatment works); and
"(B) specify factors to be taken into account in determining the best measures and practices available to comply with subsection (b)(2) of section 301 of this Act to be applicable to any point source (other than
publicly owned treatment works) within such categories or classes. Factors relating to the assessment of best available technology shall take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, the cost of achieving such effluent reduction, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate; and
"(3) identify control measures and practices available to eliminate the discharge of pollutants from categories and classes of point sources, taking into account the cost of achieving such elimination of the discharge of pollutants." 86 Stat. 851, 33 U.S.C. § 1314(b) (1970 ed., Supp. V).
5
Section 301 provides in pertinent part:
"Sec. 301. (a) Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person shall be unlawful.
"(b) In order to carry out the objective of this Act there shall be achieved
"(1)(A) not later than July 1, 1977, effluent limitations for point sources, other than publicly owned treatment works, (i) which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 304(b) of this Act . . .
"(2)(A) not later than July 1, 1983, effluent limitations for categories and classes of point sources, other than publicly owned treatment works, which (i) shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(2) of this Act, which such effluent limitations shall require the elimination of discharges of all pollutants if the Administrator finds, on the basis of information available to him (including information developed pursuant to section 315), that such elimination is technologically and economically achievable for a category or class of point sources as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(2) of this Act . . . .
"(c) The Administrator may modify the requirements of subsection (b)(2)(A) of this section with respect to any point source for which a permit application is filed after July 1, 1977, upon a showing by the owner or operator of such point source satisfactory to the Administrator that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants.
"(d) Any effluent limitation required by paragraph (2) of subsection (b) of this section shall be reviewed at least every five years and, if appropriate, revised pursuant to the procedure established under such paragraph.
"(e) Effluent limitations established pursuant to this section or section 302 of this Act shall be applied to all point sources of discharge of pollutants in accordance with the provisions of this Act." 86 Stat. 844, 33 U.S.C. § 1311 (1970 ed., Supp. V).
6
There is no provision for compliance with § 304, the guideline section.
7
Section 402(a)(1) provides:
"Except as provided in sections 318 and 404 of this Act, the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 301(a), upon condition that such discharge will meet either all applicable requirements under sections 301, 302, 306, 307, 308, and 403 of this Act, or prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this Act." 86 Stat. 880, 33 U.S.C. § 1342(a)(1) (1970 ed., Supp. V).
Under § 402(b), the Administrator may delegate this authority to the States, but retains the power to withdraw approval of the state program, § 402(c)(3) and to veto individual state permits, § 402(d). Finally, under § 402(k), compliance with the permit is generally deemed compliance with § 301. Twenty-seven States now administer their own permit programs.
8
The pertinent provisions of § 306, 86 Stat. 854, 33 U.S.C. § 1316 (1970 ed., Supp. V), are as follows:
"(a) For purposes of this section:
"(1) The term 'standard of performance' means a standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants.
"(b)(1) . . .
"(B) As soon as practicable, but in no case more than one year, after a category of sources is included in a list under subparagraph (A) of this paragraph, the Administrator shall propose and publish regulations establishing Federal standards of performance for new sources within such category. . . .
"(2) The Administrator may distinguish among classes, types, and sizes within categories of new sources for the purpose of establishing such standards and shall consider the type of process employed (including whether batch or continuous).
"(3) The provisions of this section shall apply to any new source owned or operated by the United States.
"(e) After the effective date of standards of performance promulgated under this section, it shall be unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source."
9
Some subcategories are required to eliminate all discharges by 1977. E.g., 40 C.F.R. §§ 415.70-415.76 (1976). Other subcategories are subject to less stringent restrictions. For instance, by 1977 plants producing titanium dioxide by the chloride process must reduce average daily discharges of dissolved iron to 0.72 pounds per thousand pounds of product. This limit is cut in half for existing plants in 1983 and for all new plants. 40 C.F.R. §§ 415.220-415.225 (1976).
10
These limitations may be made "either more or less stringent" to the extent that "factors relating to the equipment or facilities involved, the process applied, or other such factors related to such discharger are fundamentally different from the factors considered" in establishing the limitations. See, e.g., for the two subcategories discussed in n.9, supra, 40 C.F.R. §§ 415.72 and 415.222 (1976), respectively.
11
Because EPA's authority to issue the regulations is closely tied to the question whether the regulations are directly reviewable in the Court of Appeals, see infra, at 124-125, some of the companies also filed suit in District Court challenging the regulations. The District Court held that EPA had the authority to issue the regulations and that exclusive jurisdiction was therefore in the Court of Appeals. 383 F.Supp. 1244 (WD Va.1974), aff'd, 4 Cir., 528 F.2d 1136 (CA4 1975) (Du Pont I ).
12
The Court of Appeals issued two separate opinions. In Du Pont I, supra, the court held that it had exclusive jurisdiction to consider the validity of the regulations. It therefore affirmed the District Court's dismissal of a suit to set aside the regulations. See n.11, supra. In Du Pont II, 541 F.2d 1018 (1976), the court held that EPA was authorized to issue "presumptively applicable" effluent limitations and new-source standards. No. 75-978 is the companies' petition for certiorari in Du Pont I, which we granted last Term, 425 U.S. 933, 96 S.Ct. 1662, 48 L.Ed.2d 174. No. 75-1473 is their petition in Du Pont II. We granted that petition, consolidated it with EPA's cross-petition, No. 75-1705, and ordered that they be argued in tandem with the companies' petition in Du Pont I. 426 U.S. 947, 96 S.Ct. 3165, 49 L.Ed.2d 1183.
The Issues
13
Section 304(b) calls for publication of guideline regulations within one year of the Act's passage. EPA failed to meet this deadline and was ordered to issue the regulations on a judicially imposed timetable. Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692 (1975).
14
Although the Act itself does not provide for review of guidelines, the Eighth Circuit has held that they are reviewable in the district court, apparently under the Administrative Procedure Act. CPC Int'l, Inc. v. Train, 515 F.2d 1032, 1038 (1975) (CPC I ). It has been suggested, however, that even if the EPA regulations are considered to be only § 304 guidelines, the Court of Appeals might still have ancillary jurisdiction to review them because of their close relationship with the § 301 effluent limitations, and because they were developed on the same record as the § 306 standards of performance for new plants, which are directly reviewable in the Court of Appeals.
15
The Courts of Appeals have resolved these issues in various ways. Only the Eighth Circuit, the first to consider the issues, has accepted the industry position. In CPC I, supra, it held that EPA lacked the authority to issue effluent-limitation regulations and that jurisdiction to review the regulations as § 304 guidelines was in the District Court. The Fourth Circuit, in Du Pont II, supra, and the Tenth Circuit, in American Petroleum Institute v. EPA, 540 F.2d 1023 (1976), held that EPA has the authority to issue effluent-limitation regulations, but that these regulations are only presumptively applicable to individual sources. The majority position, adopted by the Third Circuit, American Iron & Steel Institute v. EPA, 526 F.2d 1027 (1975); the Seventh Circuit, American Meat Institute v. EPA, 526 F.2d 442 (1975); the District of Columbia Circuit, American Frozen Food Institute v. Train, 176 U.S.App.D.C. 105, 539 F.2d 107 (1976), and the Second Circuit, Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620 (1976), is that EPA has the authority to issue regulations setting forth effluent limitations which individual plants may not exceed. Even these courts are not in complete agreement about the form the regulations should take. The commentators have also divided on the problem. See Parenteau & Tauman, The Effluent Limitations Controversy, 6 Ecology L.Q. 1 (1976); Note, Judicial Maelstrom in Federal Waters, 45 Ford.L.Rev. 625 (1976); Comment,
The Application of Effluent Limitations and Effluent Guidelines to Industrial Polluters, 13 Houst.L.Rev. 348 (1976). Note, Effective National Regulation of Point Sources Under the 1972 Federal Water Pollution Control Act, 10 Ga.L.Rev. 983 (1976).
The difference in opinion among the Circuits may be less significant than might appear. The Eighth Circuit has concluded:
"Under our ruling, the limitations written unto individual permits for existing point sources should be substantially similar to those written into permits if the EPA's theory of the Act were to be adopted.
"The only practical difference resulting from this Court's interpretation of the statute is that the § 304(b) guidelines for existing sources must be reviewed first in the District Court, while the § 306(b) standards of performance for new plants often based on the same scientific research and conclusions must be reviewed first in the Court of Appeals." CPC Int'l, Inc. v. Train, 540 F.2d 1329, 1331-1332, n.1 (C.A.8 1976) (CPC II ). See also American Meat Institute, supra, 526 F.2d, at 449 n.14.
While this Court has not had occasion to rule directly on this question, our discussion of the Act in a case decided last Term is suggestive of the answer. We then described § 402 permits as "serv(ing) to transform generally applicable effluent limitations . . . into the obligations (including a timetable for compliance) of the individual discharger . . .." EPA v. California ex rel. State Water Resources Control Board, 426 U.S., at 205, 96 S.Ct., at 2025 (emphasis added). This description clearly implied that effluent limitations of general application are to be established before individual permits are issued.
16
The Court of Appeals noted that "(t)he 1983 and new source requirements are on the basis of categories." Du Pont II, 541 F.2d, at 1029.
17
Furthermore, § 301(c) provides that the 1983 limitations may be modified if the owner of a plant shows that "such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants." This provision shows that the § 301(b) limitations for 1983 are to be established prior to consideration of the characteristics of the individual plant. American Iron & Steel Institute v. EPA, supra, 526 F.2d, at 1037 n.15. Moreover, it shows that the term "best technology economically achievable" does not refer to any individual plant. Otherwise, it would be impossible for this "economically achievable" technology to be beyond the individual owner's "economic capability."
18
Section 509(b)(1)(A) makes new-source standards directly reviewable in the court of appeals. The Court of Appeals in this litigation did not believe that Congress "intended for review to be bifurcated," with the new-source standards reviewable in a different forum than regulations governing existing sources. 528 F.2d at 1141. The Eighth Circuit has acknowledged the practical problems and potential for inconsistent rulings created by bifurcated review. CPC II, supra, 540 F.2d, at 1332 n.1. We consider it unlikely that Congress intended such bifurcated review, and even less likely that Congress intended such bifurcated review, and even less likely that Congress intended regulations governing existing sources to be reviewable in two different forums, depending on whether the regulations require compliance in 1977 or 1983.
19
We agree with the Court of Appeals, 541 F.2d, at 1028, that consideration of whether EPA's variance provision has the proper scope would be premature.
20
All citations to the legislative history are to Senate Committee on Public Works, A Legislative History of the Water Pollution Control Act Amendments of 1972, prepared by the Environmental Policy Division of the Congressional Research Service of the Library of Congress (Comm. Print 1973).
21
Petitioners rely heavily on selected portions of the following passage from the Senate Report to support their view of § 301:
"It is the Committee's intention that pursuant to subsection 301(b)(1)(A) and Section 304(b) the Administrator will interpret the term 'best practicable' when applied to various categories of industries as a basis for specifying clear and precise effluent limitations to be implemented by January 1, 1976 (now July 1, 1977). In defining best practicable for any given industrial category, the Committee expects the Administrator to take a number of factors into account. These factors should include the age of the plants, their size and the unit processes involved and the cost of applying such controls. In effect, for any industrial category, the Committee expects the Administrator to define a range of discharge levels, above a certain base level applicable to all plants within that category. In applying effluent limitations to any individual plant, the factors cited above should be applied to that specific plant. In no case, however, should any plant be allowed to discharge more pollutants per unit of production than is defined by that base level.
"The Administrator should establish the range of best practicable levels based upon the average of the best existing performance by plants of various sizes, ages, and unit processes within each industrial category." S.Rep. No. 92-414, p. 50 (1971), Leg.Hist. 1468; U.S.Code Cong. & Admin.News 1972, p. 3716.
If construed to be construed to be consistent with the legislative history we have already discussed, and with what we have found to be the clear statutory language, this language can be fairly read to allow the use of subcategories based on factors such as size, age, and unit processes, with effluent limitations for each subcategory normally based on the performance of the best plants in that subcategory.
22
As the Court of Appeals held, 541 F.2d, at 1027, EPA's response to this problem was within its discretion. Accord, American Frozen Food Institute v. Train, 176 U.S.App.D.C., at 128-129, 539 F.2d, at 130-131. Even if we considered this course to constitute a procedural error, it would not invalidate the § 301 regulations themselves since the purposes for issuing the guidelines were substantially achieved, see n.23, infra, and no prejudice has been shown.
23
The guidelines could have served at least three functions. First, they would have provided guidance to permit issuers prior to promulgation of the § 301 effluent limitation regulations. Second, they would have given industry more time to prepare to meet the § 301 regulations. Third, they would have afforded a greater opportunity for public input into the final § 301 regulations, by giving notice of the general outlines of those regulations. These functions were substantially served by EPA's practice of obtaining public comment on the development document and proposed regulations. In addition, the guidelines could furnish technical guidance to companies lacking expertise in pollution control by informing them of appropriate control methods. See S.Rep. No. 92-414, p. 45 (1971), Leg.Hist. 1463. This function is served by the Development Document and supporting materials.
24
See American Iron & Steel Institute v. EPA, 526 F.2d, at 1037-1041; American Meat Institute v. EPA, 526 F.2d, at 450-452; American Frozen Food Institute v. Train, 176 U.S.App.D.C., at 114-129, 539 F.2d, at 116-131. As these courts have noted, a number of provisions of the Act seem to assume that § 301 effluent limitations have some existence apart from § 402 permits. Section 301(a) makes any discharge unlawful "(e)xcept as in compliance with this section and sectio(n) . . . 402 . . . of this Act." Similarly, § 509(b), the judicial-review provision, refers separately to the Administrator's action "(E) in approving or promulgating any effluent limitation or other limitation under section 301 . . . and (F) in issuing or denying any permit under section 402." Likewise, § 505(f) defines "effluent standard or limitation," for purposes of the citizen-enforcement provision of the Act, to include "(2) an effluent limitation or other limitation under section 301 or 302 of this Act," and "(6) a permit or condition thereof issued under section 402 of this Act." The legislative history also recognizes a distinction between permit conditions and § 301 limitations. For instance: "The (House) Committee further recognizes that the requirements under sectio(n) 301 . . . will not all be promulgated immediately upon enactment of this bill. Nevertheless, it would be unreasonable to delay issuing of permits until all the implementing steps are necessary." H.R.Rep. No. 92-911, p. 126 (1972), Leg.Hist. 813.
These Court of Appeals decisions have also thoroughly considered the arguments the Eighth Circuit found to be persuasive. The most important contrary arguments are these:
(1) The Eighth Circuit was impressed by the differences between § 301 and sections explicitly authorizing EPA to issue regulations. These dif-
ferences are less than the Eighth Circuit believed. For instance, the Eighth Circuit stressed that the explicitly authorized regulations were referred to as "standards," and that this term is not used in § 301. CPC I, 515 F.2d, at 1038. But § 316(b) refers to "(a)ny standard established pursuant to section 301." Other differences between § 301 and sections providing explicitly for enforceable regulations, such as the lack of any statutory timetable for § 301 limitations, can be explained on the basis of the greater difficulty of drafting § 301 regulations.
(2) There was heated debate in Congress concerning whether EPA should be able to veto individual state permits, as the Act now provides. The Eighth Circuit believed that "creation of the veto power would make no sense if the EPA was already empowered to promulgate regulations under § 301." CPC I, supra, at 1040-1041. We disagree. "(A) veto power could have been considered just as necessary to ensure compliance by the permit grantors with section 301 limitations as with section 304 guidelines." American Iron & Steel Institute, supra, at 1041. The veto power would be especially important because large numbers of permits could be issued before the § 301 regulations were promulgated. During this interim period, inconsistency with the § 304(b) guidelines could be a ground for vetoing a permit. (Moreover, we disagree with the Eighth Circuit's contention that EPA's power to object to "the issuance of such permit as being outside the guidelines and requirements of this Act," § 402(d)(2), can only refer to § 304(b) guidelines. CPC I, supra, 515 F.2d, at 1038-1039. Section 304(h) provides for guidelines governing the procedure for issuance of permits; EPA can veto a permit if "the issuance of such permit" violated these guidelines.)
We are also unconvinced by the argument that our view of the Act violates the congressional intent to leave the States a major role in controlling water pollution. See American Meat Institute, supra, 526 F.2d, at 452.
25
Petitioners contend that the administrative construction should not receive deference because it was not contemporaneous with the passage of the Act. They base this argument primarily on the fact that EPA's initial notices of its proposed rulemaking refer to § 304(b), rather than § 301, as the source of authority. But this is merely evidence that the Administrator originally intended to issue guidelines prior to issuing effluent limitation regulations. American Frozen Food Institute v. Train, supra, 176 U.S.App.D.C., at 128 n.6, 539 F.2d, at 130 n.6. In fact, in a letter urging the President to sign the Act, the Administrator stated that "(t)he Conference bill fully incorporates as its central regulatory point the Administration's proposal concerning effluent limitations in terms of industrial categories and groups ultimately applicable to individual dischargers through a permit system." 118 Cong.Rec. 36777 (1972), Leg.Hist. 149 (emphasis added). Finally, the EPA interpretation would be entitled to some deference even if it was not contemporaneous, "having in mind the complexity and technical nature of the statutes and the subjects they regulate, the obscurity of the statutory language, and EPA's unique experience and expertise in dealing with the problems created by these conditions." American Meat Institute v. EPA, supra, 526 F.2d, at 450 n.16.
26
This litigation exemplifies the wisdom of allowing difficult issues to mature through full consideration by the courts of appeals. By eliminating the many subsidiary, but still troubling, arguments raised by industry, these courts have vastly simplified our task, as well as having underscored the reasonableness of the agency view.
27
It should be noted that petitioners' principal arguments are directed to the proposition that § 301 did not mandate the promulgation of industrywide regulations for existing point sources. But that ultimate proposition is not necessarily inconsistent with EPA's position that it was authorized to proceed by regulation if the aggregate effect of thousands of individual permit proceedings would not achieve the required effluent limitations by the 1977 and 1983 deadlines. Even with respect to the permit programs authorized by § 402, it is clear that EPA can delegate responsibilities to the States without surrendering its ultimate authority over such programs as well as over individual permit actions.
28
Petitioners attach some significance to the fact that compliance with a § 402 permit is "deemed compliance, for purposes of sections 309 (the federal enforcement section) and 505 (the citizen suit section), with sectio(n) . . . 306 . . .." § 402(k). This provision plainly cannot allow deviations from § 306 standards in issuing the permit. For, after standards of performance are promulgated, the permit can only be issued "upon condition that such discharge will meet . . . all applicable requirements under sectio(n) . . . 306 . . ." § 402(a)(1); and one of the requirements of § 306 is that no new source may operate in violation of any standard of performance. § 306(e). The purpose of § 402(k) seems to be to insulate permit holders from changes in various regulations during the period of a permit and to relieve them of having to litigate in an enforcement action the question whether their permits are sufficiently strict. In short, § 402(k) serves the purpose of giving permits finality.
| 78
|
430 U.S. 1
97 S.Ct. 926
51 L.Ed.2d 124
Howard PIPER et al., Petitioners,v.CHRIS-CRAFT INDUSTRIES, INC. The FIRST BOSTON CORPORATION, Petitioner, v. CHRIS-CRAFT INDUSTRIES, INC. BANGOR PUNTA CORPORATION et al., Petitioners, v. CHRIS-CRAFT INDUSTRIES, INC.
Nos. 75-353, 75-354 and 75-355.
Argued Oct. 6, 1976.
Decided Feb. 23, 1977.
Rehearings Denied April 18, 1977. See 430 U.S. 976, 97 S.Ct. 1668.
Syllabus
Respondent Chris-Craft Industries was the unsuccessful tender offeror in a contest for the control of a corporation. During the course of the takeover contest, Chris-Craft brought suit for damages and injunctive relief against the management of the target corporation, its investment adviser, and Bangor Punta Corp., the successful competitor, alleging, inter alia, violations of § 14(e) and other provisions of the Securities Exchange Act of 1934, and Rule 10b-6 of the Securities and Exchange Commission. Section 14(e) makes unlawful "any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer . . . or any solicitation of security holders in opposition to or in favor of any such offer . . . ." Rule 10b-6 prohibits issuers whose stock is in the process of distribution from market tampering by purchasing stock or stock rights until the distribution has been completed. After protracted litigation, the Court of Appeals ultimately held that Chris-Craft had standing to sue for damages under § 14(e) and Rule 10b-6 and that a claim for damages had been established. The court stated that it would not infer from the silence of the statute that Congress intended to deny a federal remedy as a "means of furthering the general objective of § 14(e). . . ." On the merits the court found violations of § 14(e) by all the defendants and violations of Rule 10b-6 by the successful competitor. The court then remanded for a determination of the amount of damages and instructed the District Court to enjoin the successful competitor for at least five years from voting the target company's shares acquired through violation of § 14(e) and Rule 10b-6. Held:
1. A tender offeror, suing in its capacity as a takeover bidder, does not have standing to sue for damages under § 14(e); hence, the Court of Appeals erred in holding that Chris-Craft, as a defeated tender offeror, had an implied cause of action for damages under that provision. Pp. 24-42.
(a) The legislative history shows that the sole purpose of § 14(e) was the protection of investors who are confronted with a tender offer. Congress was intent on regulating takeover bidders, who had previously operated covertly, in order to protect shareholders of target companies; tender offerors, the class regulated by the statute, were not the intended beneficiaries of the legislation. Pp. 26-37.
(b) The creation of an implied cause of action for damages by judicial interpretation, such as is urged by Chris-Craft, is not necessary to effectuate Congress' objectives in enacting § 14(e). This conclusion is confirmed by the four factors identified in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26, as "relevant" in determining whether a private remedy is implicit in a statute not expressly providing one: (i) Chris-Craft, a member of the class whose activities Congress intended to regulate for the benefit of target shareholders, was not " 'one of the class for whose especial benefit (§ 14(e)) was enacted . . .' "; (ii) although nothing in the legislative history manifests an intent to deny a damages remedy to tender offerors, there is no material showing an intention to create such a remedy, and the pervasive legislative history negates any claim that the statute was intended to provide tender offerors with additional weapons in contests for control; (iii) it is not consistent with the underlying legislative purpose to imply a damages remedy for the tender offeror in a statute especially designed to protect shareholders of target corporations, particularly where the damages award (here $36 million to Chris-Craft) favors the tender offeror, not the "injured" shareholders of the target; and (iv) the cause of action by a tender offeror is one appropriately "relegated to state law," to the extent that the offeror seeks damages for loss of an opportunity to control a corporation. Pp. 37-41.
2. In the context of this case, Chris-Craft has no standing to sue for damages on account of the asserted Rule 10b-6 violations by the successful competitor, since Chris-Craft's complaint is not that the price paid for the target company's shares was influenced by the Rule 10b-6 violations, but that the opportunity to gain control of the target company was lost by virtue of those violations. Thus, Chris-Craft's complaint does not implicate the concerns of Rule 10b-6, which is aimed at maintaining an orderly market for the distribution of securities from manipulative influences. Pp. 42-46.
3. The Court of Appeals erred under the circumstances presented here in awarding Chris-Craft injunctive relief. The case was tried in the District Court exclusively as a suit for damages after Chris-Craft expressly waived any claim to injunctive relief. Under these circumstances, this Court's holding that Chris-Craft has no cause of action for damages under either § 14(e) or Rule 10b-6 renders the injunction granted by the District Court inappropriate, premised as it was upon the impermissible award of damages. Pp. 47-48.
516 F.2d 172, reversed.
Lloyd N. Cutler, Washington, D. C., for petitioners in No. 75-355.
David W. Peck, New York City, for petitioner in No. 75-354.
Paul G. Pennoyer, Jr., New York City, for petitioners in No. 75-353.
Arthur L. Liman, New York City, for respondents in each case.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in these cases, 425 U.S. 910, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976), to consider, among other issues, whether an unsuccessful tender offeror in a contest for control of a corporation has an implied cause of action for damages under § 14(e) of the Securities Exchange Act of 1934, as added by § 3 of the Williams Act of 1968, 82 Stat. 457, 15 U.S.C. § 78n(e), or under Securities and Exchange Commission (SEC) Rule 10b-6, 17 CFR § 240.10b-6 (1976), based on alleged antifraud violations by the successful competitor, its investment adviser, and individuals constituting the management of the target corporation.
2
* Background
3
The factual background of this complex contest for control, including the protracted litigation culminating in the cases now before us, is essential to a full understanding of the contending parties' claims.
4
The three petitions present questions of first impression, arising out of a "sophisticated and hard fought contest" for control of Piper Aircraft Corp., a Pennsylvania-based manufacturer of light aircraft. Piper's management consisted principally of members of the Piper family, who owned 31% of Piper's outstanding stock. Chris-Craft Industries, Inc., a diversified manufacturer of recreational products, attempted to secure voting control of Piper through cash and exchange tender offers for Piper common stock. Chris-Craft's takeover attempt failed, and Bangor Punta Corp. (Bangor or Bangor Punta), with the support of the Piper family, obtained control of Piper in September 1969. Chris-Craft brought suit under § 14(e) of the Securities Exchange Act of 1934 and Rule 10b-6, alleging that Bangor Punta achieved control of the target corporation as a result of violations of the federal securities laws by the Piper family, Bangor Punta, and Bangor Punta's underwriter, First Boston Corp., who together had successfully repelled Chris-Craft's takeover attempt.
5
The struggle for control of Piper began in December 1968. At that time, Chris-Craft began making cash purchases of Piper common stock. By January 22, 1969, Chris-Craft had acquired 203,700 shares, or approximately 13% of Piper's 1,644,790 outstanding shares. On the next day, following unsuccessful preliminary overtures to Piper by Chris-Craft's president, Herbert Siegel, Chris-Craft publicly announced a cash tender offer for up to 300,000 Piper shares1 at $65 per share, which was approximately $12 above the then-current market price. Responding promptly to Chris-Craft's bid, Piper's management met on the same day with the company's investment banker, First Boston, and other advisers. On January 24, the Piper family decided to oppose Chris-Craft's tender offer. As part of its resistance to Chris-Craft's take-over campaign, Piper management sent several letters to the company's stockholders during January 25-27, arguing against acceptance of Chris-Craft's offer. On January 27, a letter to shareholders from W. T. Piper, Jr., president of the company, stated that the Piper Board "has carefully studied this offer and is convinced that it is inadequate and not in the best interests of Piper's shareholders."
6
In addition to communicating with shareholders, Piper entered into an agreement with Grumman Aircraft Corp. on January 29, whereby Grumman agreed to purchase 300,000 authorized but unissued Piper shares at $65 per share. The agreement increased the amount of stock necessary for Chris-Craft to secure control and thus rendered Piper less vulnerable to Chris-Craft's attack. A Piper press release and letter to shareholders announced the Grumman transaction but failed to state either that Grumman had a "put" or option to sell the shares back to Piper at cost, plus interest, or that Piper was required to maintain the proceeds of the transaction in a separate fund free from liens.
7
Despite Piper's opposition, Chris-Craft succeeded in acquiring 304,606 shares by the time its cash tender offer expired on February 3. To obtain the additional 17% of Piper stock needed for control, Chris-Craft decided to make an exchange offer of Chris-Craft securities for Piper stock. Although Chris-Craft filed a registration statement and preliminary prospectus with the SEC in late February 1969, the exchange offer did not go into effect until May 15, 1969.
8
In the meantime, Chris-Craft made cash purchases of Piper stock on the open market until Mr. Siegel, the company's president, was expressly warned by SEC officials that such purchases, when made during the pendency of an exchange offer, violated SEC Rule 10b-6.2 At Mr. Siegel's direction, Chris-Craft immediately complied with the SEC's directive and canceled all outstanding orders for purchases of Piper stock.
9
While Chris-Craft's exchange offer was in registration, Piper in March 1969 terminated the agreement with Grumman and entered into negotiations with Bangor Punta. Bangor had initially been contacted by First Boston about the possibility of a Piper takeover in the wake of Chris-Craft's initial cash tender offer in January. With Grumman out of the picture, the Piper family agreed on May 8, 1969, to exchange their 31% stockholdings in Piper for Bangor Punta securities. Bangor also agreed to use its best efforts to achieve control of Piper by means of an exchange offer of Bangor securities for Piper common stock. A press release issued the same day announced the terms of the agreement, including a provision that the forthcoming exchange offer would involve Bangor securities to be valued, in the judgment of First Boston, "at not less than $80 per Piper share."3
10
While awaiting the effective date of its exchange offer, Bangor in mid-May 1969 purchased 120,200 shares of Piper stock in privately negotiated, off-exchange transactions from three large institutional investors. All threepurchases were made after the SEC's issuance of a release on May 5 announcing proposed Rule 10b-13, a provision which, upon becoming effective in November 1969, would expressly prohibit a tender offeror from making purchases of the target company's stock during the pendency of an exchange offer. The SEC release stated that the proposed rule was "in effect, a codification of existing interpretations under Rule 10b-6,"4 the provision invoked by SEC officials against Mr. Siegel of Chris-Craft a month earlier. Bangor officials, although aware of the release at the time of the three off-exchange purchases, made no attempt to secure an exemption for the transactions from the SEC, as provided by Rule 10b-6(f). The SEC, however, took no action concerning these purchases as it had with respect to Chris-Craft's open-market transactions.
11
With these three block purchases, amounting to 7% of Piper stock, Bangor Punta in mid-May took the lead in the takeover contest. The contest then centered upon the competing exchange offers. Chris-Craft's first exchange offer, which began in mid-May 1969, failed to produce tenders of the specified minimum number of Piper shares (80,000). Meanwhile, Bangor Punta's exchange offer, which had been announced on May 8, became effective on July 18. The registration materials which Bangor filed with the SEC in connection with the exchange offer included financial statements, reviewed by First Boston, representing that one of Bangor's subsidiaries, the Bangor & Aroostock Railroad (BAR), had a value of $18.4 million. This valuation was based upon a 1965 appraisal by investment bankers after a proposed sale of the BAR failed to materialize. The financial statements did not indicate that Bangor was considering the sale of the BAR or that an offer to purchase the railroad for $5 million had been received.5
12
In the final phase of the see-saw of competing offers, Chris-Craft modified the terms of its previously unsuccessful exchange offer to make it more attractive. The revised offer succeeded in attracting 112,089 additional Piper shares, while Bangor's exchange offer, which terminated on July 29, resulted in the tendering of 110,802 shares. By August 4, 1969, at the conclusion of both offers, Bangor Punta owned a total of 44.5%, while Chris-Craft owned 40.6% of Piper stock. The remainder of Piper stock, 14.9%, remained in the hands of the public.
13
After completion of their respective exchange offers, both companies renewed market purchases of Piper stock,6 but Chris-Craft, after purchasing 29,200 shares for cash in mid-August, withdrew from competition.7 Bangor Punta continued making cash purchases until September 5, by which time it had acquired a majority interest in Piper. The final tally in the nine-month takeover battle showed that Bangor Punta held over 50% and Chris-Craft held 42% of Piper stock.
II
14
Before either side had achieved control, the contest moved from the marketplace to the courts. Then began more than seven years of complex litigation growing out of the contest for control of Piper Aircraft.
A.
Chris-Craft's Initial Suit
May 22, 1969
15
On May 22, 1969, Chris-Craft filed suit seeking both damages and injunctive relief in the United States District Court for the Southern District of New York. Chris-Craft alleged that Bangor's block purchases of 120,200 Piper shares in mid-May violated Rule 10b-6 and that Bangor's May 8 press release, announcing an $80 valuation of Bangor securities to be offered in the forthcoming exchange offer, violated SEC "gun-jumping" provisions, 15 U.S.C. § 77e(c), and SEC Rule 135, 17 CFR § 230.135 (1976). Chris-Craft sought to enjoin Bangor from voting the Piper shares purchased in violation of Rule 10b-6 and from accepting any shares tendered by Piper stockholders pursuant to the exchange offer.
B
16
District Court Decision on Preliminary Injunction
August 19, 1969
17
On July 22, 1969, Chris-Craft moved for a preliminary injunction against Bangor. In an opinion filed August 19, 1969, United States District Judge Charles Tenney denied relief. Judge Tenney concluded, first, that the May 8 press release had not violated the gun-jumping provisions, and, second, that Bangor's block purchases of Piper stock were not inconsistent with Rule 10b-6.
18
"Bangor Punta's cash purchases . . ., effected neither on the Exchange nor from or through a broker or dealer, were obviously not designed to place market pressures on the distribution price of Piper, so as to create an artificially high price for this security." 303 F.Supp. 191, 198. (Emphasis supplied.)8
19
Judge Tenney, accordingly, concluded that neither irreparable injury nor likelihood of probable success on the merits had been established, particularly since the contest for control was still open.
20
"(B)oth the Chris-Craft and Bangor Punta exchange offers have expired. Neither party has gained control of Piper, and both are still in a position to do so." Id., at 199.
C
21
Court of Appeals' Decision on Preliminary Injunction
April 28, 1970
22
On appeal, the Court of Appeals for the Second Circuit, sitting en banc, affirmed Judge Tenney's denial of injunctive relief. 426 F.2d 569 (1970). In an opinion by Judge Waterman, the court held that Bangor had properly been allowed to continue soliciting Piper stock.
23
"Chris-Craft was free (at time of the District Court's decision) to compete equally with Bangor Punta for the remaining Piper shares, and it did so. We do not understand Chris-Craft to allege that prior misdeeds of Bangor Punta so determined the course of the competition . . . that Chris-Craft was placed at any real disadvantage." Id., at 573.
24
The court concluded, however, that Bangor had violated SEC "gun-jumping" provisions and Rule 10b-6, unless the three block purchases fell within an established exemption to the Rule.9
25
Chief Judge Lumbard in dissent agreed that injunctive relief was unwarranted, but also accepted the District Court's determination that Bangor had not violated the securities laws.10 Id., at 579.
26
The Court of Appeals remanded the case for further proceedings, so that Bangor, among other things, could attempt to establish that its block purchases fell within an exemption to Rule 10b-6.
D
District Court Decision on SEC Injunction
August 25, 1971
27
While Chris-Craft's private suit was pending, the SEC sought an injunction against Bangor on account of the BAR omission in Bangor's registration statement. The Commission sought both an offer of rescission to Piper shareholders who accepted Bangor's exchange offer and an injunction against Bangor from violating the Securities Act of 1933 and the 1934 Act.
28
In an opinion by Judge Pollack, the District Court concluded that Bangor's registration statement was unintentionally misleading by virtue of the failure to disclose the fact that an offer had been received for the sale of the BAR. Accordingly, the court required Bangor to offer rescission to tendering Piper shareholders; however, the District Court refused to grant an injunction against future violations of the securities laws on the ground that the SEC had failed to establish that Bangor and its officials had a "propensity or natural inclination to violate the securities law." SEC v. Bangor Punta Corp., 331 F.Supp. 1154, 1163 (1971).
E
District Court Decision on Liability
December 10, 1971
29
On remand from the Court of Appeals, Chris-Craft's private action also came before Judge Pollack. Although its second amended complaint, which added a claim based on the BAR omission, sought both damages and injunctive relief, Chris-Craft at a partial hearing expressly abandoned its prayer for equitable relief; the case was thereafter treated solely as an action for damages. 337 F.Supp. 1128, 1136 n. 8.
30
Following trial before the District Court without a jury, Judge Pollack in December 1971 dismissed Chris-Craft's complaint against all defendants. In an exhaustive opinion, he concluded that Chris-Craft had standing to seek damages for Bangor's Rule 10b-6 violations, 337 F.Supp., at 1133, but found it unnecessary to decide whether § 14(e) could be invoked by one competitor for corporate control against another. 337 F.Supp., at 1134.11
31
On the merits, the District Court held that the Piper communications characterizing Chris-Craft's cash tender offer as "inadequate" were not misleading. The court concluded that the "more rational" view was that the statements referred to factors other than price, such as Piper's views as to the quality of Chris-Craft's management. Id., at 1135. The court also rejected Chris-Craft's contention that it had been injured by the omission in the Grumman press release concerning the "put" or option provision in the agreement. The District Court concluded that Piper's complete description of the provision in a listing application with the New York Stock Exchange, coupled with Chris-Craft's major acquisitions of Piper stock after learning of the "put," undermined Chris-Craft's claim that it was misled or otherwise injured by the announcement of the Grumman transaction. Ibid.
32
With respect to the May 8 press release, which the Court of Appeals had held violative of the "gun-jumping" rules, the District Court held that the release, although technically a violation, was not false or misleading. Moreover, Chris-Craft had failed to show that it was injured or disadvantaged by the release in its efforts to acquire Piper stock. Id., at 1137.
33
As to the claim of a misleading valuation of the BAR, Judge Pollack held that Chris-Craft failed to show either scienter or causation as required in a damages action under the 1934 Act's antifraud provisions. Scienter was not established, the court concluded, since the BAR omission was "mere negligent omission or misstatement of fact." Id., at 1140. As to causation, the District Court specifically distinguished this Court's decision in Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), which established a presumption of causation in a § 14(a) suit by minority shareholders challenging misleading proxy materials. The omission in the proxy statement in that case, the District Court reasoned, directly affected the shareholders on whose behalf the suit was brought:
34
"It was in that particular context that the Supreme Court deemed sufficient a set of facts under which shareholders could be misled. This does not aid Chris-Craft as it is seeking to recover because of the effect which a misstatement allegedly had on third parties." 337 F.Supp., at 1139. (Emphasis in original.) (Footnote omitted.)
35
Given the differences between the instant case and Mills, the District Court went on to hold that proof of actual causation was required:
36
"There is no proof that a single exchanging Piper shareholder would have refrained from the exchange and taken an offer for his shares from Chris-Craft instead of that from Bangor Punta. In a damage suit, as distinct from one for equitable relief, such proof is essential to sustain a 10b-5 claim." Ibid. (Emphasis in original.)
37
On Chris-Craft's Rule 10b-6 claim, Judge Pollack held that, although the block purchases did not fall within any exemption to the Rule, Chris-Craft had no right to recovery:
38
"Even granting that the block purchases resulted arithmetically in Bangor Punta's achievement of control, there is no basis for concluding that, absent Bangor Punta's acquisition of these blocks, Chris-Craft would have achieved its goal of control." Id., at 1142.
39
Based on its findings with respect to Piper and Bangor Punta, the District Court also held in favor of First Boston; the court specifically exonerated the firm of having "committed, or engaged in any course of conduct which operated as fraud or deceit upon Chris-Craft or the public shareholders of Piper." Id., at 1145.
F
Court of Appeals Decision on Liability
March 16, 1973
40
Chris-Craft appealed, and the SEC sought review of the District Court's denial of injunctive relief against Bangor Punta. In the Court of Appeals, each member of the panel wrote separately. All three members of the panel agreed that Chris-Craft had standing to sue for damages under § 14(e) and that a claim for damages had been established. However, Judges Gurfein and Mansfield, over Judge Timbers' dissent, sustained the District Court's denial of an injunction against Bangor.
Court of Appeals Majority Opinion
41
The Court of Appeals directly answered the question concerning Chris-Craft's standing under § 14(e), which the District Court had not decided.12 The Court of Appeals based its holding "on the statute itself (§ 14(e)) and such decisional law as there is that has touched on the question." 480 F.2d 341, 358. The opinion noted that the Second Circuit had on four occasions13 addressed the issue whether a private cause of action might be implied under § 14(e). Although acknowledging that no case represented a square holding in this respect, the court interpreted the cases to intimate "that such an implied right of action would be reasonable." 480 F.2d, at 360. The court then noted that Chris-Craft could likely state a common-law tort claim in state court for "interference with a 'prospective advantage.' " Ibid.
42
"We will not infer from the silence of the statute that Congress intended to deny a federal remedy and to extinguish a liability which, under established principles of tort law, normally attends the doing of a proscribed act." Id., at 360-361.
43
With respect to the legislative history of § 14(e), the Court of Appeals expressly acknowledged that the focus of congressional concern was the protection of public shareholders. Given this purpose, the court concluded:
44
"We can conceive of no more effective means of furthering the general objective of § 14(e) than to grant a victim of violations of the statute standing to sue for damages. . . . Particularly in light of the enforcement rationale of (J. I. Case Co. v.) Borak (377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964),) we believe it is both necessary and appropriate that (Chris-Craft) should be granted standing to sue for damages." 480 F.2d, at 361.
45
The court next reviewed the alleged § 14(e) violations for which Chris-Craft sought damages. In contrast to the District Court's conclusions, the Court of Appeals held that Piper's description of the Chris-Craft offer as "inadequate" and the failure to disclose the "put" provision in the Grumman agreement constituted actionable violations of § 14(e). 480 F.2d, at 364-365. As to Bangor Punta, the Court of Appeals agreed with Judge Pollack's determination that Chris-Craft had not been injured by the "gun-jumping" press release of May 8; on the other hand, the court held that BAR omission in Bangor's registration statement was actionable. The Court of Appeals expressly rejected Judge Pollack's conclusion that the registration statement was "unintentionally in error." On the contrary, the Court of Appeals held that Bangor Punta's officers "showed reckless disregard" in failing to disclose the BAR negotiations, although the court conceded that the officers were not shown to have had an "intent to defraud." Id., at 369. First Boston was likewise held culpable because its certification of the registration statement "amounted to an almost complete abdication of its responsibility (as an underwriter) . . . ." Id., at 373.
46
The Court of Appeals also disagreed with the District Court's analysis of causation. Although agreeing that Chris-Craft failed to show that it would have won the takeover battle,14 the court relied upon Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), as establishing a presumption of reliance and causation applicable to Chris-Craft. Under Mills,, so the court held, "we must presume that (Bangor's) offer was not so appealing, considering the BAR loss, as to have attracted any takers." 480 F.2d, at 375.
47
"Since (Bangor) eventually acquired only about 51% of the outstanding Piper shares, it is clear that the 7% acquired through its exchange offer was critical to its success. Reliance and causation have been shown." Ibid.
48
In addition to the § 14(e) claim, the Court of Appeals held that Chris-Craft could recover damages for Bangor's Rule 10b-6 violations; the three block purchases had a "presumptively . . . stimulating effect . . . which misled the public." 480 F.2d, at 378. Since those purchases amounted to 7% of Piper stock, "(e)ven arithmetically, it is apparent that the block purchases (by Bangor Punta) . . . were essential to achieve control." Id., at 379.
49
The Court of Appeals then remanded with directions to the District Court to award damages in the amount of "the reduction in the appraisal value of (Chris-Craft's) Piper holdings attributable to (Bangor Punta's) taking a majority position and reducing (Chris-Craft) to a minority position . . . ." Id., at 380. Damages were to be awarded against all defendants jointly and severally. In addition, without discussing Chris-Craft's abandonment of its claim for equitable relief, the court instructed the District Court to enjoin Bangor for a period of at least five years from voting the Piper shares acquired through the exchange offer and in violation of Rule 10b-6. Ibid.
50
Finally, Judge Timbers, writing in dissent on this issue, disagreed with the conclusion of Judges Mansfield and Gurfein that the SEC request for an injunction against future violations by Bangor Punta had properly been refused. In Judge Timbers' view, the District Court employed an improper legal standard in denying the SEC injunctive relief against Bangor.
Judge Gurfein's Concurring Opinion
51
Judge Gurfein concurred "generally" in Judge Timbers' opinion for the court. On the issue of standing, Judge Gurfein agreed with the District Court's approach in considering the matter as one of "causation before considering the question of standing." 480 F.2d, at 393. Under Judge Gurfein's approach, Chris-Craft had standing because Bangor's acquisitions of Piper shares were necessary for control. As to scienter, Judge Gurfein was of the view that "mere negligence" would not suffice but that " 'recklessness that is equivalent to wilful fraud' is required . . . ." Ibid. (Citation omitted.)
52
Judge Gurfein disagreed, however, with Judge Timbers' analysis of the alleged Rule 10b-6 violations. He refused to indulge the presumption of "stimulating effect" embraced by Judge Timbers and concluded rather that because "the (illegal) block purchases were necessary for control causation was established. . . ." 480 F.2d, at 393.
53
With respect to the SEC action against Bangor Punta, Judge Gurfein, writing for himself and Judge Mansfield, upheld the District Court's refusal to grant a permanent injunction. Applying the "abuse of discretion" standard, Judge Gurfein concluded that "the matter is not so clear that we should substitute our judgment for the judgment of the experienced trial Judge below who sat as a chancellor in equity." Ibid.
54
Judge Mansfield's Concurring and Dissenting Opinion
55
Judge Mansfield concurred in the "results" reached by Judge Timbers, except with respect to the Piper family's liability. Judge Mansfield agreed that the Piper communications violated § 14(e), but concluded that Chris-Craft had failed to prove damages resulting from those infractions. Applying the principles of Mills v. Electric Auto-Lite Co., supra, Judge Mansfield stated:
56
"(Chris-Craft) must show that it suffered some resulting loss. This it has failed to do." 480 F.2d, at 401.
57
On the other issues addressed by the majority opinion, Judge Mansfield concluded that Chris-Craft's standing under § 14(e) rested solely on the policy of vigorous enforcement of the antifraud provisions. 480 F.2d, at 396. As to scienter, Judge Mansfield concluded that intent to defraud had not been shown. He formulated instead the following test of scienter:
58
"In short, the scienter requirement would be met if the corporate officer (1) knew the essential facts and failed to disclose them, or (2) failed or refused, after being put on notice of a possible material failure in disclosure, to apprise himself of the facts under circumstances where he could reasonably have ascertained and disclosed them without any extraordinary effort." Id., at 398.
59
He concluded that the actions complained of satisfied this standard.
60
Like Judge Gurfein, Judge Mansfield declined to indulge the presumption that Bangor's Rule 10b-6 violations actually operated to make its exchange offer deceptively attractive; he concurred solely on the ground that where a party achieves control through violations of the securities laws, the party is liable as a matter of law to an injured competitor.15
G
District Court Opinion on Relief
November 6, 1974
61
Pursuant to the remand, Judge Pollack took evidence on damages. Although concluding that the Court of Appeals' mandate required the use of "hypothetical figures," he determined that Chris-Craft's damages were to be measured by comparing the value of its Piper holdings prior and subsequent to Bangor's achieving control. 384 F.Supp. 507, 512 (1974). Employing this method, he concluded on the basis of expert testimony that the fair market value of Piper stock as of the day Bangor achieved control was $48 per share. Id., at 517. After ascertaining that the value of Chris-Craft's takeover opportunity amounted to 5% of the fair market value of the stock, or $2.40 per share, id., at 523, the District Court awarded to Chris-Craft, based on its holdings of 697,495 shares, damages of $1,673,988. Ibid. The District Court also granted an award of prejudgment interest and entered an injunction, consistent with the mandate of the Court of Appeals, barring Bangor from voting the illegally acquired Piper shares for five years. Id., at 526.
H
Court of Appeals' Opinion on Relief
April 11, 1975
62
In the final phase of the litigation, the Court of Appeals reversed on the damages issue and calculated Chris-Craft's damages without further remand to the District Court. The Court of Appeals fixed damages as the difference between what Chris-Craft had actually paid for Piper shares and the price at which the large minority block could have been sold at the earliest point after Bangor Punta gained control. Application of this formula produced damages in the amount of $36.98 per Piper share held by Chris-Craft, or a total of $25,793,365. 516 F.2d 172, 190 (1975). The court instructed the District Court to recompute prejudgment interest based on the revised damages award. Id., at 191. This new computation increased Chris-Craft's prejudgment interest from $600,000 to approximately $10 million.
63
It is this judgment which is now under review.
III
The Williams Act
64
We turn first to an examination of the Williams Act, which was adopted in 1968 in response to the growing use of cash tender offers as a means for achieving corporate takeovers.16 Prior to the 1960's, corporate takeover attempts had typically involved either proxy solicitations, regulated under § 14 of the Securities Exchange Act, 15 U.S.C. § 78n, or exchange offers of securities, subject to the registration requirements of the 1933 Act. § 77e. The proliferation of cash tender offers, in which publicized requests are made and intensive campaigns conducted for tenders of shares of stock at a fixed price, removed a substantial number of corporate control contests from the reach of existing disclosure requirements of the federal securities laws. See generally S.Rep.No.550, 90th Cong., 1st Sess., 2-4 (1967) (hereinafter Senate Report); H.R.Rep.No.1711, 90th Cong., 2d Sess., 2-4 (1968) (hereinafter House Report); U.S.Code Cong. & Admin.News 1968, p. 2811.
65
To remedy this gap in federal regulation, Senator Harrison Williams introduced a bill in October 1965 to subject tender offerors to advance disclosure requirements. The original proposal, S. 2732, evolved over the next two years in response to positions expressed by the SEC and other interested parties from private industry and the New York Stock Exchange. 113 Cong.Rec. 854 (1967) (remarks of Sen. Williams). As subsequently enacted, the legislation requires takeover bidders to file a statement with the Commission indicating, among other things, the "background and identity" of the offeror, the source and amount of funds or other consideration to be used in making the purchases, the extent of the offeror's holdings in the target corporation, and the offeror's plans with respect to the target corporation's business or corporate structure. 15 U.S.C. § 78m(d)(1).
66
In addition to disclosure requirements, which protect all target shareholders, the Williams Act provides other benefits for target shareholders who elect to tender their stock. First, stockholders who accept the tender offer are given the right to withdraw their shares during the first seven days of the tender offer and at any time after 60 days from the commencement of the offer. § 78n(d)(5). Second, where the tender offer is for less than all outstanding shares and more than the requested number of shares are tendered, the Act requires that the tendered securities be taken up pro rata by the offeror during the first 10 days of the offer. § 78n(d)(6).17 This provision, according to Senator Williams, was specifically designed to reduce pressures on target shareholders to deposit their shares hastily when the takeover bidder makes its tender offer on a first-come, first-served basis. 113 Cong.Rec. 856 (1967). Finally, the Act provides that if, during the course of the offer, the amount paid for the target shares is increased, all tendering shareholders are to receive the additional consideration, even if they tendered their stock before the price increase was announced. § 78n(d)(7). See generally 1 A. Bromberg, Securities Law: Fraud § 6.3(551), p. 120.2 (1975).
67
Besides requiring disclosure and providing specific benefits for tendering shareholders, the Williams Act also contains a broad antifraud prohibition, which is the basis of Chris-Craft's claim. Section 14(e) of the Securities Exchange Act, as added by § 3 of the Williams Act, 82 Stat. 457, 15 U.S.C. § 78n(e), provides:
68
"It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer or request or invitation for tenders, or any solicitation of security holders in opposition to or in favor of any such offer, request, or invitation."
69
This provision was expressly directed at the conduct of a broad range of persons, including those engaged in making or opposing tender offers or otherwise seeking to influence the decision of investors or the outcome of the tender offer. Senate Report 11.
70
The threshold issue in these cases is whether tender offerors such as Chris-Craft, whose activities are regulated by the Williams Act, have a cause of action for damages against other regulated parties under the statute on a claim that antifraud violations by other parties have frustrated the bidder's efforts to obtain control of the target corporation. Without reading such a cause of action into the Act, none of the other issues need be reached.
IV
71
Our analysis begins, of course, with the statute itself. Section 14(e), like § 10(b), makes no provision whatever for a private cause of action, such as those explicitly provided in other sections of the 1933 and 1934 Acts. E. g., §§ 11, 12, 15 of the 1933 Act, 15 U.S.C. §§ 77k, 77l, 77o ; §§ 9, 16, 18, 20 of the 1934 Act, 15 U.S.C. §§ 78i, 78p, 78r, 78t. This Court has nonetheless held that in some circumstances a private cause of action can be implied with respect to the 1934 Act's antifraud provisions, even though the relevant provisions are silent as to remedies. J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) (§ 14(a)); Superintendent of Ins. v. Bankers Life & Cas. Co., 404 U.S. 6, 13 n. 9, 92 S.Ct. 165, 169, 30 L.Ed.2d 128 (1971) (§ 10(b)).
72
The reasoning of these holdings is that, where congressional purposes are likely to be undermined absent private enforcement, private remedies may be implied in favor of the particular class intended to be protected by the statute. For example, in J. I. Case Co. v. Borak, supra, recognizing an implied right of action in favor of a shareholder complaining of a misleading proxy solicitation, the Court concluded as to such a shareholder's right:
73
"While (§ 14(a)) makes no specific reference to a private right of action, among its chief purposes is 'the protection of investors,' which certainly implies the availability of judicial relief where necessary to achieve that result." 377 U.S., at 432, 84 S.Ct., at 1560. (Emphasis supplied.)
74
Indeed, the Court in Borak carefully noted that because of practical limitations upon the SEC's enforcement capabilities, "(p)rivate enforcement . . . provides a necessary supplement to Commission action." Ibid. (Emphasis added.) Similarly, the Court's opinion in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 95 S.Ct. 1917, 1922, 44 L.Ed.2d 539 (1975), in reaffirming the availability of a private right of action under § 10(b), specifically alluded to the language in Borak concerning the necessity for supplemental private remedies without which congressional protection of shareholders would be defeated. See also Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 62, 95 S.Ct. 2069, 2078, 45 L.Ed.2d 12 (1975).
75
Against this background we must consider whether § 14(e), which is entirely silent as to private remedies, permits this Court to read into the statute a damages remedy for unsuccessful tender offerors. To resolve that question we turn to the legislative history to discern the congressional purpose underlying the specific statutory prohibition in § 14(e). Once we identify the legislative purpose, we must then determine whether the creation by judicial interpretation of the implied cause of action asserted by Chris-Craft is necessary to effectuate Congress' goals.
A.
76
Reliance on legislative history in divining the intent of Congress is, as has often been observed, a step to be taken cautiously. Department of Air Force v. Rose, 425 U.S. 352, 388-389, 96 S.Ct. 1592, 1611-1612, 48 L.Ed.2d 11 (1976) (Blackmun, J., dissenting); United States v. Public Utilities Comm'n, 345 U.S. 295, 319, 73 S.Ct. 706, 719, 97 L.Ed. 1020 (1953) (Jackson, J., concurring); Scripps-Howard Radio v. FCC, 316 U.S. 4, 11, 62 S.Ct. 875, 880, 86 L.Ed. 1229 (1942). In this case both sides press legislative history on the Court not so much to explain the meaning of the language of a statute as to explain the absence of any express provision for a private cause of action for damages. As Mr. Justice Frankfurter reminded us: "We must be wary against interpolating our notions of policy in the interstices of legislative provisions." Id., at 11, 62 S.Ct., at 880. With that caveat, we turn to the legislative history of the Williams Act.
77
In introducing the legislation on the Senate floor, the sponsor, Senator Williams, stated:
78
"This legislation will close a significant gap in investor protection under the Federal securities laws by requiring the disclosure of pertinent information to stockholders when persons seek to obtain control of a corporation by a cash tender offer or through open market or privately negotiated purchases of securities." 113 Cong.Rec. 854 (1967). (Emphasis supplied.)
79
The same theme of investor protection was emphasized eight months later by Senator Williams on the day the measure was passed by the Senate:
80
"(The federal securities laws) provide protection for millions of American investors by requiring full disclosure of information in connection with the public offering and trading of securities. These laws have worked well in providing the public with adequate information on which to base intelligent investment decisions.
81
"There are, however, some areas still remaining where full disclosure is necessary for investor protection but not required by present law. One such area is the purchase by direct acquisition or by tender offers of substantial blocks of the securities of publicly held companies.
82
"S. 510 . . . provides for investor protection in these areas." Id., at 24664. (Emphasis supplied.)
83
Indeed, the bill as finally enacted by Congress was styled as a disclosure provision: "A bill to provide for full disclosure of corporate equity ownership of securities under the Securities Exchange Act of 1934." See generally 1 A. Bromberg, supra, § 6.3(121), at 116.2.
84
Confirming the view that the legislation was designed to fill "a rather large gap in the securities statutes," Manuel Cohen, then Chairman of the SEC, testified before the Senate Subcommittee on Securities:
85
"(T)he general approach . . . of this bill is to provide the investor, the person who is required to make a decision, an opportunity to examine and to assess the relevant facts . . . ." Senate Hearings 15.
86
In response to the suggestion that the legislation would tend to aid entrenched management in warding off potentially beneficial takeover bids, Chairman Cohen testified:
87
"But the principal point is that we are not concerned with assisting or hurting either side. We are concerned with the investor who today is just a pawn in a form of industrial warfare. . . . The investor is lost somewhere in the shuffle. This is our concern and our only concern." Id., at 178. (Emphasis supplied.)
88
The legislative history thus shows that Congress was intent upon regulating takeover bidders, theretofore operating covertly, in order to protect the shareholders of target companies. That tender offerors were not the intended beneficiaries of the bill was graphically illustrated by the statements of Senator Kuchel, cosponsor of the legislation, in support of requiring takeover bidders, whom he described as "corporate raiders" and "takeover pirates," to disclose their activities.
89
"Today there are those individuals in our financial community who seek to reduce our proudest businesses into nothing but corporate shells. They seize control of the corporation with unknown assets, sell or trade away the best sources, and later split up the remains among themselves. The tragedy of such collusion is that the corporation can be financially raped without management or shareholders having any knowledge of the acquisitions. . . . The corporate raider may thus act under a cloak of secrecy while obtaining the shares needed to put him on the road to a successful capture of the company." 113 Cong.Rec. 857-858 (1967). (Emphasis supplied.)
90
At different stages of the legislative debate, Senator Kuchel called the Senate's attention to specific takeover attempts directed against two companies. During the floor debate on the day S. 510 was passed, Senator Kuchel described one takeover contest:
91
"If this attempt had succeeded, (the company) would have found itself under the control of a combination including significant foreign interests, without prior notice to the company, without an opportunity for examination into the circumstances surrounding the tender offer, and without any regard for the rights of its stockholders." Id., at 24665. (Emphasis supplied.)
92
Moreover, the Senate Subcommittee heard the testimony of Professor Hayes, speaking on behalf of himself and his co-author of a comprehensive study on takeover attempts,18 who stated:
93
"The two major protagonists the bidder and the defending management do not need any additional protection, in our opinion. They have the resources and the arsenal of moves and countermoves which can adequately protect their interests. Rather, the investor who is the subject of these entreaties of both major protagonists is the one who needs a more effective champion . . . ." Senate Hearings 57. (Emphasis supplied.)
94
In the face of this legislative history, the Court of Appeals understandably did not rely upon the legislative materials to support an implied cause of action for damages in favor of Chris-Craft. In this Court, however, Chris-Craft and the SEC contend that Congress clearly intended to protect tender offerors as part of a "pervasive scheme of federal regulation of tender offers." In support of their reading of the legislative history, they emphasize, first, that in enacting the legislation Congress was intent upon establishing a policy of even-handedness in takeover regulation. Congress was particularly anxious, Chris-Craft argues, " 'to avoid tipping the balance of regulation . . . .' "
95
Congress was indeed committed to a policy of neutrality in contests for control, but its policy of evenhandedness does not go either to the purpose of the legislation or to whether a private cause of action is implicit in the statute. Neutrality is, rather, but one characteristic of legislation directed toward a different purpose the protection of investors. Indeed, the statements concerning the need for Congress to maintain a neutral posture in takeover attempts are contained in the section of the Senate Report entitled, "Protection of Investors." Taken in their totality, these statements confirm that what Congress had in mind was the protection of shareholders, the "pawn(s) in a form of industrial warfare." The Senate Report expressed the purpose as "plac(ing) investors on an equal footing with the takeover bidder," Senate Report 4, without favoring either the tender offeror or existing management. This express policy of neutrality scarcely suggests an intent to confer highly important, new rights upon the class of participants whose activities prompted the legislation in the first instance.
96
Moreover, closer analysis shows that Congress' "equal footing" observations were in response to strong criticisms that the proposed legislation would unduly inhibit tender offers.19 As originally introduced, the disclosure proposals embodied in S. 2731 were avowedly pro-management in the target company's efforts to defeat takeover bids. See generally Note, The Williams Amendments: An Evaluation of the Early Returns, 23 Vand.L.Rev. 700 (1970). Subsequent committee hearings, however, indicated, first, that takeover bids could often serve a useful function, and, second, that entrenched management, equipped with considerable weapons in battles for control, tended to be successful in fending off possibly beneficial takeover attempts. Several witnesses specifically called the efficacy of the proposed legislation into question, since in their view the "scales are pretty unbalanced at the moment, and unbalanced very much in favor of management." Senate Hearings 117.
97
The sponsors of this legislation were plainly sensitive to the suggestion that the measure would favor one side or the other in control contests; however, they made it clear that the legislation was designed solely to get needed information to the investor, the constant focal point of the committee hearings. Senator Williams articulated this singleness of purpose, even while advocating neutrality:
98
"We have taken extreme care to avoid tipping the scales either in favor of management or in favor of the person making the takeover bids. S. 510 is designed solely to require full and fair disclosure for the benefit of investors." 113 Cong.Rec. 24664 (1967). (Emphasis supplied.)
99
Accordingly, the congressional policy of "evenhandedness" is nonprobative of the quite disparate proposition that the Williams Act was intended to confer rights for money damages upon an injured takeover bidder.
100
Besides the policy of evenhandedness, Chris-Craft emphasizes that the matter of implied private causes of action was raised in written submissions to the Senate Subcommittee. Specifically, Chris-Craft points to the written statements of Professors Israels and Painter, who made reference to J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). Chris-Craft contends, therefore, that Congress was aware that private actions were implicit in § 14(e).
101
But this conclusion places more weight on the passing reference to Borak than can reasonably be carried. Even accepting the value of written statements received without comment by the committee and without cross-examination,20 the statements do not refer to implied private actions by offeror-bidders. For example, Professor Israels' statement on this subject reads:
102
"(A) private litigant could seek similar relief before or after the significant fact such as the acceptance of his tender of securities." Senate Hearings 67. (Emphasis supplied.)
103
Similarly, Professor Painter in his written submission referred to "injured investors." Id., at 140. Neither Israels nor Painter discussed or even alluded to remedies potentially available to takeover bidders.
104
More important, these statements referred to a case in which the remedy was afforded to shareholders the direct and intended beneficiaries of the legislation. In Borak, the Court emphasized that § 14(a), the proxy provision, was adopted expressly for "the protection of investors," 377 U.S., at 432, 84 S.Ct., at 1559, the very class of persons there seeking relief.21 The Court found no difficulty in identifying the legislative objective and concluding that remedies should be available if necessary "to make effective the congressional purpose." Id., at 433, 84 S.Ct., at 1560. Borak did not involve, and the statements in the legislative history relied upon by Chris-Craft do not implicate, the interests of parties such as offeror-bidders who are outside the scope of the concerns articulated in the evolution of this legislation.22
105
Chris-Craft and the SEC also rely upon statements in the legislative history which, they suggest, demonstrate that Congress in adopting the Williams Act was concerned with parties other than shareholders. First, they place particular emphasis upon a statement by Chairman Cohen in his Senate testimony that "shareholders are not the only persons concerned." From this statement, they argue that tender offerors were likewise within the sphere of congressional concern. In that colloquy, however, Chairman Cohen was plainly referring to persons in need of disclosure:
106
"As soon as there is a takeover bid, everybody in the market gets excited. There are people who consider themselves professional or amateur arbitragers, and they begin to play the games that possibility permits." Senate Hearings 178.
107
Thus, Chairman Cohen was referring to other actors in the marketplace, including arbitragers, who would benefit from disclosure. He was not referring to the needs of those required by the proposed legislation to make disclosure, the tender offerors themselves.
108
Finally, Chris-Craft emphasizes what it perceives as the Commission's express concern with the plight of takeover bidders faced with "unfair tactics by entrenched management." The SEC Chairman did indeed speak in the Subcommittee Hearings of the need to "regulate improper practices by management and others opposing a tender offer . . . ." Senate Hearings 184. But in so doing, he was not pleading the cause of takeover bidders; on the contrary, he testified that imposing disclosure duties upon management would "make it much easier for stockholders to evaluate the offer on its merits." Ibid. (Emphasis supplied.)
109
In short, by extending the statute's coverage to solicitations in opposition to tender offers, Congress was seeking to broaden the scope of protection afforded to shareholders confronted with competing claims. Senator Williams, for example, was fully aware that in a contest for control, full disclosure by all contestants was needed to protect shareholders:
110
"In the rather common situation where existing management or third parties contest a tender offer, shareholders may be exposed to a bewildering variety of conflicting appeals and arguments designed to persuade them either to accept or to reject the tender offer. The experience of the SEC with proxy fights offers ample evidence that this type of situation can best be controlled, and shareholders most adequately informed, if both sides to the argument are subject to the full and fair disclosure rules of the Federal securities laws." 113 Cong.Rec. 855-856 (1967). (Emphasis supplied.)
111
Furthermore, in the very passages on which Chris-Craft relies as evidencing SEC concern for tender offerors, Chairman Cohen criticized any analysis which focused upon the legislation's impact on management or the takeover bidder:
112
"Moreover, this type of analysis lays almost exclusive stress on the respective interests of the offeror and the existing management, rather than upon the protection of the stockholders, . . . who are left to be treated as pawns in an elaborate game between the offerors and the management or perhaps other competing interests." Senate Hearings 184. (Emphasis supplied.)
113
The legislative history thus shows that the sole purpose of the Williams Act was the protection of investors who are confronted with a tender offer. As we stated in Rondeau v. Mosinee Paper Corp., 422 U.S., at 58, 95 S.Ct., at 2075: "The purpose of the Williams Act is to insure that public shareholders who are confronted by a cash tender offer for their stock will not be required to respond without adequate information . . . ." We find no hint in the legislative history, on which respondent so heavily relies, that Congress contemplated a private cause of action for damages by one of several contending offerors against a successful bidder or by a losing contender against the target corporation.
114
The dissent suggests, however, that Chris-Craft is suing under § 14(e) for injuries sustained in its status as a Piper shareholder, as well as in its capacity as a defeated tender offeror. Post, at 56-59. In contrast to that suggestion, Chris-Craft's position in this Court on the issue of standing is based on the narrow ground that the Williams Act was designed to protect not only target company shareholders, but rival contestants for control as well. Brief for Respondent 36-40, 43, 46-48, 50-54. It is clear, therefore that Chris-Craft has not asserted standing under § 14(e) as a Piper shareholder. The reason is not hard to divine. As a tender offeror actively engaged in competing for Piper stock, Chris-Craft was not in the posture of a target shareholder confronted with the decision of whether to tender or retain its stock. Consequently, Chris-Craft could scarcely have alleged a need for the disclosures mandated by the Williams Act. In short, the fact that Chris-Craft necessarily acquired Piper stock as a means of taking over Piper adds nothing to its § 14(e) standing arguments.23 This probably explains why the Court of Appeals at no time intimated that it rested Chris-Craft's standing on its status as a Piper stockholder. Its opinion in this respect could hardly be clearer:
115
"This is a case of first impression with respect to the right of a tender offeror to claim damages for statutory violations by his adversary. And our holding is premised on the belief that the harm done the defeated contestant is not that it had to pay more for the stock but that it got less stock than it needed for control." 480 F.2d, at 362. (Emphasis supplied.)
116
Moreover, the items of damages cited in dissent, post, at 57-58, n. 6, as attributable to Chris-Craft in its status as a Piper shareholder are, upon analysis, actually related under these circumstances to Chris-Craft's status as a contestant for control of a corporation. First, the alleged "loss of the control premium," which Chris-Craft presumably otherwise would have enjoyed, relates on its face, not to Chris-Craft as a Piper shareholder per se, but to its status as a shareholder who failed to gain control. Second, the alleged loss of value as to a "locked-in," "exceptionally large block" of Piper stock likewise relates under these circumstances to a particular kind of Piper shareholder, namely one whose efforts to secure control necessarily resulted in the acquisition of major stockholdings in the company. In this regard, the Court of Appeals plausibly assumed that in order to dispose of its Piper holdings Chris-Craft would have to file a registration statement with the SEC, since Chris-Craft would presumably be engaged in a distribution of Piper stock. 516 F.2d at 188-189. In contrast no ordinary Piper shareholder would have had to comply with the 1933 Act's registration requirements in order to sell his stock, since the typical shareholder is not "an issuer, underwriter, or dealer." 15 U.S.C. § 77d(1).
117
Consequently, the elements of damages mentioned in dissent are peculiar to Chris-Craft not as a "target shareholder" of Piper, but as a defeated tender offeror "injured" by its adversaries' alleged violations of the securities laws.24
B
118
Our conclusion as to the legislative history is confirmed by the analysis in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). There, the Court identified four factors as "relevant" in determining whether a private remedy is implicit in a statute not expressly providing one. The first is whether the plaintiff is " 'one of the class for whose especial benefit the statute was enacted . . . .' " Id., at 78, 95 S.Ct., at 2087. (Emphasis in original.) As previously indicated, examination of the statute and its genesis shows that Chris-Craft is not an intended beneficiary of the Williams Act, and surely is not one "for whose especial benefit the statute was enacted." Ibid. To the contrary, Chris-Craft is a member of the class whose activities Congress intended to regulate for the protection and benefit of an entirely distinct class, shareholder-offerees. As a party whose previously unregulated conduct was purposefully brought under federal control by the statute, Chris-Craft can scarcely lay claim to the status of "beneficiary" whom Congress considered in need of protection.
119
Second, in Cort v. Ash we inquired whether there was "any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one." Ibid. Although the historical materials are barren of any express intent to deny a damages remedy to tender offerors as a class, there is, as we have noted, no indication that Congress intended to create a damages remedy in favor of the loser in a contest for control. Fairly read, we think the legislative documents evince the narrow intent to curb the unregulated activities of tender offerors. The expression of this purpose, which pervades the legislative history, negates the claim that tender offerors were intended to have additional weapons in the form of an implied cause of action for damages, particularly if a private damages action confers no advantage on the expressly protected class of shareholder-offerees, a matter we discuss later. Infra, at 39.
120
Chris-Craft argues, however, that Congress intended standing under under § 14(e) to encompass tender offerors since the statute, unlike § 10(b), does not contain the limiting language, "in connection with the purchase or sale" of securities. Instead, in § 14(e), Congress broadly proscribed fraudulent activities "in connection with any tender offer . . . or any solicitation . . . in opposition to or in favor of any such offer . . . ."
121
The omission of the purchaser-seller requirement does not mean, however, that Chris-Craft has standing to sue for damages under § 14(e) in its capacity as a takeover bidder. It may well be that Congress desired to protect, among others, shareholder-offerees who decided not to tender their stock due to fraudulent misrepresentations by persons opposed to a takeover attempt. See generally 1 A. Bromberg, Securities Law: Fraud § 6.3 (1021), p. 122.17 (1969). See also Senate Report 2; House Report 3. These shareholders, who might not enjoy the protection of § 10(b) under Blue Chip Stamps v. Manor Drugs Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), could perhaps state a claim under § 14(e), even though they did not tender their securities.25 But increased protection, if any, conferred upon the class of shareholder-offerees by the elimination of the purchaser-seller restriction can scarcely be interpreted as giving protection to the entirely separate and unrelated class of persons whose conduct the statute is designed to regulate.
122
Third, Cort v. Ash tells us that we must ascertain whether it is "consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff." 422 U.S., at 78, 95 S.Ct., at 2088. We conclude that it is not. As a disclosure mechanism aimed especially at protecting shareholders of target corporations, the Williams Act cannot consistently be interpreted as conferring a monetary remedy upon regulated parties, particularly where the award would not redound to the direct benefit of the protected class. Although it is correct to say that the $36 million damages award indirectly benefits those Piper shareholders who became Chris-Craft shareholders when they accepted Chris-Craft's exchange offer, it is equally true that the damages award injures those Piper shareholders who exchanged their shares for Bangor Punta's stock and who, as Bangor Punta shareholders, would necessarily bear a large part of the burden of any judgment against Bangor Punta. The class sought to be protected by the Williams Act are the shareholders of the target corporation; hence it can hardly be said that their interests as a class are served by a judgment in favor of Chris-Craft and against Bangor Punta. Moreover, the damages are awarded to the very party whose activities Congress intended to curb; Chris-Craft did not sue in the capacity of an injured Piper shareholder, but as a defeated tender offeror.
123
Nor can we agree that an ever-present threat of damages against a successful contestant in a battle for control will provide significant additional protection for shareholders in general. The deterrent value, if any, of such awards can never be ascertained with precision. More likely, however, is the prospect that shareholders may be prejudiced because some tender offers may never be made if there is a possibility of massive damages claims for what courts subsequently hold to be an actionable violation of § 14(e).26 Even a contestant who "wins the battle" for control may well wind up exposed to a costly "war" in a later and successful defense of its victory. Or at worst on Chris-Craft's damages theory the victorious tender offeror or the target corporation might be subject to a large substantive judgment, plus high costs of litigation.
124
In short, we conclude that shareholder protection, if enhanced at all by damages awards such as Chris-Craft contends for, can more directly be achieved with other, less drastic means more closely tailored to the precise congressional goal underlying the Williams Act.
125
Fourth, under the Cort v. Ash analysis, we must decide whether "the cause of action (is) one traditionally relegated to state law . . . ." 422 U.S., at 78, 95 S.Ct., at 2088. Despite the pervasiveness of federal securities regulation, the Court of Appeals concluded in these cases that Chris-Craft's complaint would give rise to a cause of action under common-law principles of interference with a prospective commercial advantage. Although Congress is, of course, free to create a remedial scheme in favor of contestants in tender offers, we conclude, as we did in Cort v. Ash, that "it is entirely appropriate in this instance to relegate (the offeror-bidder) and others in (that) situation to whatever remedy is created by state law," id., at 84, 95 S.Ct., at 2091, at least to the extent that the offeror seeks damages for having been wrongfully denied a "fair opportunity" to compete for control of another corporation.
C
126
What we have said thus far suggests that, unlike J. I. Case Co. v. Borak, supra, judicially creating a damages action in favor of Chris-Craft is unnecessary to ensure the fulfillment of Congress' purposes in adopting the Williams Act. Even though the SEC operates in this context under the same practical restraints recognized by the Court in Borak, institutional limitations alone do not lead to the conclusion that any party interested in a tender offer should have a cause of action for damages against a competing bidder.27 First, as Judge Friendly observed in Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937, 947 (C.A.2 1969), in corporate control contests the stage of preliminary injunctive relief, rather than post-contest lawsuits, "is the time when relief can best be given." Furthermore, awarding damages to parties other than the protected class of shareholders has only a remote, if any, bearing upon implementing the congressional policy of protecting shareholders who must decide whether to tender or retain their stock.28 Indeed, as we suggested earlier, a damages award of this nature may well be inconsistent with the interests of many members of the protected class and of only indirect value to shareholders who accepted the exchange offer of the defeated takeover contestant.
127
We therefore conclude that Chris-Craft, as a defeated tender offeror, has no implied cause of action for damages under § 14(e).
V
128
In addition to its holding under § 14(e), the Court of Appeals held that Bangor was liable for damages under Rule 10b-6 because of its off-exchange cash purchases of Piper stock in May 1969. Although the Court of Appeals imposed joint and several liability upon all defendants with respect to the injury occasioned by Bangor's achieving control of Piper, our holding in Part IV, supra, that no cause of action for damages lies under § 14(e) in favor of ChrisCraft, necessarily removes all petitioners except Bangor Punta from any potential liability in these cases. The issue that remains is whether Chris-Craft has a cause of action for damages against Bangor alone by virtue of the latter's alleged Rule 10b-6 violations. We hold that it does not.
129
Rule 10b-629 is an antimanipulative provision designed to protect the orderliness of the securities market during distributions of stock. The Rule in essence prohibits issuers whose stock is in the process of distribution from market-tampering by purchasing either the stock or rights to purchase the stock until the distribution has been completed. The purpose of the Rule is to prevent stimulative trading by an issuer in its own securities in order to create an unnatural and unwarranted appearance of market activity. See generally E. Aranow & H. Einhorn, Tender Offers for Corporate Control 131 (1973). Here, the Court of Appeals held, and its holding is unchallenged, that the cash purchases of Piper stock during the pendency of Bangor's exchange offer constituted purchases of "right(s) to purchase" Bangor stock within the meaning of Rule 10b-6.30
130
Without questioning the finding of Rule 10b-6 violations, Bangor strenuously argues that Chris-Craft fails the standing test applied in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975).31 The concern of Rule 10b-6 in these circumstances, Bangor suggests, is to foreclose manipulative trading which would affect the price of Bangor Punta stock, since Bangor Punta securities were being distributed in the exchange offer. Because Chris-Craft neither purchased nor sold Bangor securities, it is foreclosed, under Bangor's analysis, from suing under Rule 10b-6.
131
If we accepted Bangor's analysis, Rule 10b-6 would provide no remedy for an entire class of persons who actually purchased or sold securities, namely, those investors who either bought or sold Piper stock, which in turn represented "rights" to purchase Bangor stock then in distribution. This class of securities would, under the SEC's theory, be potentially affected by Bangor's off-exchange purchases, since acquisitions of rights to acquire stock during a distribution have, under the SEC's view of Rule 10b-6, at least the potential for artificially raising the price of those rights. Thus, Bangor's theory would foreclose, among others, any investors who purchased Piper stock after the unlawful acquisitions; this would be true even though the price paid for the stock might be shown to reflect the stimulative effects of Bangor's off-market, block purchases. In this respect, this case is readily distinguishable from Blue Chip, where the complainants made no purchases of stock at all; unlike that situation, here Chris-Craft was a purchaser of Piper common stock, the very class of securities with respect to which Bangor was held to have committed Rule 10b-6 violations.
132
We conclude, however, that these cases do not call for a definitive resolution of the law of standing under Rule 10b-6, as Bangor would have us do. Nor do we find it appropriate to do so under the unusual circumstances presented here. First, the Court of Appeals, although sensitive to the Birnbaum issue, did not have the benefit of our decision in Blue Chip in resolving the standing issue. Second, in this Court both Chris-Craft and the United States, in its amicus brief on certiorari, contend that § 14(e)'s broad prohibition of "manipulative acts or practices" in tender offers embraces acts proscribed under the more specific mandate of Rule 10b-6. Brief for Respondent 56; Brief for United States as Amicus Curiae 16-17. Thus, to this extent the issue of Rule 10b-6 standing has not been fully explored by the parties, because of their initial misconception as to Chris-Craft's standing to sue for damages under § 14(e).
133
Although we reserve judgment on the broader standing issues arising under Rule 10b-6, we hold that, in the context of these cases, Chris-Craft is without standing to sue for damages on account of Bangor's alleged Rule 10b-6 violations. Our holding is based upon one critical factor: As the parties themselves have framed the issues for resolution in this litigation, Chris-Craft is clearly outside the express concern of Rule 10b-6. At no time has Chris-Craft complained of or even suggested that the price which it paid for Piper shares was influenced by Bangor's Rule 10b-6 violations. Indeed, Chris-Craft does not assert standing as a Piper shareholder; on the contrary, it claims damages because, in its view of the case, it lost the opportunity to gain control of Piper by virtue of Bangor's Rule 10b-6 violations. Assuming the correctness of this theory, the fact remains that Rule 10b-6 is not directed at or concerned with contests for corporate control. This technical rule is focused narrowly upon a precise goal maintaining an orderly market for the distribution of securities free from artificial or manipulative influences. Thus, as the issues have been framed, Chris-Craft did not come to the courts in the posture of a hoodwinked investor victimized by market manipulation; its complaint, as we noted, is that it lost a chance to gain control of a corporation, a claim beyond the bounds of the specific concern of Rule 10b-6.
134
Our conclusion in this respect is buttressed by the close relationship of Rule 10b-6 with § 9 of the 1934 Act, 15 U.S.C. § 78i. Section 9, among other things, prohibits transactions by issuers in their own securities, if forbidden by SEC regulations, even though the transactions are designed to stabilize the market for the issuer's stock. § 78i(a)(6). The SEC suggests in its amicus brief that Rule 10b-6 was promulgated pursuant to the Commission's authority under § 9(a)(6),32 as well as under § 10(b) of the 1934 Act. It contends that, in view of this bifurcated statutory origin, Chris-Craft need only be a purchaser of Piper stock to have standing under Rule 10b-6, since § 9 requires only that an aggrieved party have purchased or sold "any security" affected by the violation. 15 U.S.C. § 78i(e). Under this view, Chris-Craft's failure to purchase Bangor Punta stock is irrelevant, since its purchases of Piper shares satisfied the "any security" requirement of § 9.
135
Unlike § 10(b), however, § 9 provides an express cause of action for persons injured by unlawful market activities. 15 U.S.C. § 78i(e). Yet, that cause of action is framed specifically in favor of "any person who shall purchase or sell any security at a price which was affected by such act or transaction . . . ." Ibid. (Emphasis supplied.) Congress therefore focused in § 9 upon the amount actually paid by an investor for stock that had been the subject of manipulative activity. This is not, as we have seen, the gravamen of Chris-Craft's complaint. It seeks no recovery for an improper premium exacted for Piper stock; rather it desires compensation for its lost opportunity to control Piper. We therefore conclude that, on its claimed basis for relief, Chris-Craft cannot avail itself of Rule 10b-6.
VI
136
Our resolution of these issues makes it unnecessary to address the other questions raised by the parties in their petitions for certiorari. Since we have concluded that Chris-Craft cannot avail itself of § 14(e) or Rule 10b-6 in its suit for damages, it is unnecessary to consider the Court of Appeals' holdings with respect to scienter, causation, the calculation of damages, the imposition of joint and several liability, the liability of underwriters in § 14(e) damages actions, and the award of prejudgment interest.
137
Apart from awarding damages, however, the Court of Appeals also ordered the District Court to enjoin Bangor Punta from voting the illegally acquired Piper shares for a period of five years. In compliance with that directive, Judge Pollack on remand entered an injunction to remain in effect for a period of five years from November 12, 1974, the date on which judgment was entered. 384 F.Supp., at 528-529. On appeal, the Court of Appeals affirmed that portion of the District Court's order.
138
We hold that, under the circumstances presented here, this injunction should not have been granted. As we previously indicated, Chris-Craft prior to the trial on liability expressly waived any claim to injunctive relief. The case was tried in the District Court, without a jury, exclusively as a suit for damages. See 337 F.Supp., at 1136 n. 8, 1137, 1141-1142, n. 18, 1146. Accord, 480 F.2d, at 355, 379. Under these circumstances, our holding that Chris-Craft does not have a cause of action for damages under § 14(e) or Rule 10b-6 renders that injunction inappropriate premised as it was upon the impermissible award of damages.33 The inappropriateness of the injunction is particularly acute in this litigation, where the order was entered almost four years after the contest for control had ended and where no regard was given to the interests of the protected class of shareholder-offerees, many of whom would be at least indirectly disadvantaged by the award.34
139
Accordingly, the judgment of the Court of Appeals is
140
Reversed.
141
Mr. Justice BLACKMUN, concurring in the judgment.
142
I concur in the judgment. For the reasons set out in Mr. Justice STEVENS' dissenting opinion, post, p. 53, I am willing to begin with the premise that respondent Chris-Craft had "standing" in the sense that it possessed an implied right to sue under § 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. § 78n(e). Unlike the dissenters, however, I do not conclude, from this, that the Court of Appeals' judgment as to liability is to be affirmed. Since I am of the opinion that respondent failed to prove that petitioners' violations of the securities laws caused its injury, I agree with the Court that the judgment below should be reversed.1
143
* For the sake of clarity, it is useful to review briefly the acts that constituted violations of the securities laws and to identify the violators.
144
Three violations of § 14(e) were isolated by the District Court and the Court of Appeals. The first occurred when W. T. Piper, Jr., wrote the letter of January 27 to the Piper shareholders and therein described the Chris-Craft offer as "inadequate and not in the best interests of Piper's shareholders." Petitioner First Boston reviewed that letter. Chris-Craft alleged that the description of its offer was a misstatement of material fact. In addition, the letter omitted to reveal First Boston's opinion that the price Chris-Craft was offering for Piper shares was fair, and it failed to disclose the pending negotiations with Grumman Aircraft Corporation.
145
The second § 14(e) violation occurred with the Piper press release and letter to its shareholders on January 29. The sins in this instance were those of omission: Although the release and letter discussed the agreement with Grumman, they were silent about Grumman's option to return the shares to Piper at cost plus interest, and about Piper's obligation to keep the sale proceeds in a separate fund free from liens.
146
Finally, the courts determined that petitioners Bangor Punta and First Boston omitted to state a material fact relating to the value of the Bangor & Aroostock Railroad (BAR) in the financial statements filed in connection with Bangor's exchange offer. Specifically, the papers did not reveal that Bangor had been offered only $5 million for the sale of BAR, in the face of the facts that BAR was carried on Bangor's books at $18.4 million, and that no other offer appeared to be forthcoming.
147
In addition to these § 14(e) violations, the courts found that Bangor had not complied with Securities and Exchange Commission Rule 10b-6, 17 CFR § 240.10b.6 (1976). This occurred when Bangor in May 1969 made its three privately negotiated large purchases of Piper stock, while awaiting the effective date of its exchange offer.
148
This summary reveals that, on the accepted premises, the Pipers were guilty both of misstatements of material facts and of omissions; that Bangor violated § 14(e) by omitting to state material facts; that Bangor violated Rule 10b-6 by its purchases of the large blocks of Piper stock; and that First Boston, like Bangor, omitted to reveal material facts, both in connection with the Piper letters and with regard to the BAR negotiations.
II
149
Standards for proving causation in a securities law case were established in Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), and in Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). It must be shown that the misstatement or omission is "material." That term most recently has been defined by this Court to mean that "the omitted fact would have assumed actual significance in the deliberations of the reasonable shareholder." TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2121, 2133, 48 L.Ed.2d 757 (1976). Assuming that materiality is established, Mills held that causation would be proved if the misleading proxy solicitation at issue there was an "essential link in the accomplishment of the transaction." 396 U.S., at 385, 90 S.Ct., at 622.
150
Because cases involving omissions create difficult problems of proof of reliance, and hence causation, the Court elaborated on the Mills test in Affiliated Ute Citizens :
151
"Under the circumstances of this case, involving primarily a failure to disclose, positive proof of reliance is not a prerequisite to recovery. All that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in the making of this decision. . . . This obligation to disclose and this withholding of a material fact establish the requisite element of causation in fact." 406 U.S., at 153-154, 92 S.Ct., at 1472.
152
Affiliated Ute Citizens, of course, did not abolish the requirement of causation in failure-to-disclose cases. It simply provided the causal link between the omission of material information and the shareholder's act of purchasing or selling stock.
153
In the case of a suit by a tender offeror to recover damages suffered as a result of securities law violations by its competitors, causation is a far more complex issue. It is not enough for the offeror to prove that the competitor's violations caused the shareholders of the target corporation to act in a certain way. In addition, the offeror must show that the shareholders' reactions to the misstatements or omissions caused the injury for which it demands remuneration. Even though the Mills-Affiliated Ute Citizens presumption satisfies the requirements for proof of the first element of causation, the absence of any evidence that the violations might have altered the outcome of the contest for control would leave me unable to hold that the securities law violations caused the disappointed contestant's ultimate injury its failure to acquire control of the target corporation.
III
154
Applying these principles to the present litigation, I cannot say that respondent proved that the actions of any of the petitioners caused its injury. The Pipers were guilty of misstatements in the letters and press releases that they issued and of omissions in those materials. With regard to both their misstatements and omissions, the most that can be presumed is that more of the Piper shareholders would have tendered to Chris-Craft in January, when the violations occurred. To go further, and to assume that Chris-Craft would have acquired enough more shares to succeed in its contest for control, is simply contrary to the facts. The Chris-Craft offer was completely successful, insofar as it invited tender for 300,000 shares and 304,606 shares were eventually tendered. Furthermore, the evidence was strong that Chris-Craft's financial resources had been strained to the limit. Bangor Punta had not even entered the contest for control as of January. It is just as likely that Chris-Craft would have been left with a substantial block of Piper shares and that the Piper family would have retained control of the company, given only the facts that existed at the time the Piper violations were committed. Under the circumstances, Chris-Craft failed to prove that the Piper actions caused the injury of which Chris-Craft complains.
155
Neither did Chris-Craft prove that any action of Bangor Punta or First Boston caused its injury. The reasons for rejecting the proof of causation as to the Pipers, with regard to the January violations, apply with equal force to First Boston's role in those letters and press releases. Slightly different considerations are relevant to the BAR negotiations. Because the information about the proposed sale was omitted from Bangor's registration materials, Bangor's financial position may have looked somewhat better than it actually was. But even if one presumes that the shareholders who tendered to Bangor would not have done so if they had known the truth, there is still no way of knowing what course the contest would have taken from that point onward. If the shareholders had a negative opinion of Chris-Craft's management, they might have elected to retain their shares and continue their own incumbent management. Or a third contestant might have appeared. Or Bangor might have secured cash to use for its acquisition program. These uncertainties demonstrate that even taking advantage of the Mills-Affiliated Ute Citizens presumption, a finding of causation of Chris-Craft's injury was far from logically compelled. It follows that neither Bangor nor First Boston may be held liable on account of the nondisclosure of the BAR negotiations.
156
Finally, Bangor's purchases of the large blocks of Piper stock must be considered. As to this, I find conclusive the fact, noted by the Court, ante, at 45, that "(a)t no time has Chris-Craft complained of or even suggested that the price which it paid for Piper shares was influenced by Bangor's Rule 10b-6 violations."2 If the price of the shares was uninfluenced, and sufficient shares were still held by the public to make control a real possibility for Chris-Craft, there was a failure to prove causation. Cf. Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 64, 95 S.Ct. 2069, 2078, 45 L.Ed.2d 12 (1975).
157
For these reasons, I concur in the judgment of the Court.3
158
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN joins, dissenting.
159
The Williams Act was passed for the protection of investors. The threshold question in this case is whether the holder of a large block of stock who is seeking to retain or to acquire control of a corporation is one of the investors the statute was intended to protect.
160
The critical issue can be framed by concentrating on the exchange offers in July 1969. The conclusion that Bangor Punta's offer violated § 14(e) is established by prior proceedings and is not now open for review.1 When that violation occurred, Chris-Craft owned 556,206 shares of Piper stock and was attempting to acquire sufficient additional shares to constitute control. As a result of Bangor Punta's violations, Chris-Craft claims that it was injured in two ways: the value of its investment in Piper stock was impaired,2 and it lost the opportunity to purchase enough additional shares to control Piper.3 The Court holds that Chris-Craft has no "standing" to recover damages for either injury no matter how flagrant Bangor Punta's violation may have been, no matter how direct the causal connection between that violation and Chris-Craft's injury, and no matter how serious the injury. I disagree with this holding.
161
No one seriously questions the premise that Congress implicitly created a private right of action when it enacted § 14(e) in 1968.4 Also beyond serious question is the proposition that the members of the class which Congress was especially interested in protecting may invoke that private remedy and, further, that the shareholders of a target corporation are members of that class. The Court nevertheless holds that Chris-Craft may not recover because the protected class does not include tender offerors even though they may also be shareholders; and, at least implicitly, that to the extent Chris-Craft was injured in its status as a shareholder, its injury is not of a kind that the statute was intended to avoid. I am persuaded that both holdings are erroneous. I first consider Chris-Craft's status as a shareholder and then its rights as a tender offeror. Finally, I explain why my analysis is consistent with Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26.
162
* Shareholders of a target corporation may be injured by a fraudulent tender offer in two quite different ways. They may exchange their shares for an inadequate consideration in reliance on the misrepresentation. Or they may retain their shares and be harmed by the fact that other shareholders were induced to surrender control to unworthy newcomers. The legislative history of § 14(e) persuades me that Congress intended to protect the shareholders from both of these potential harms.5 Since Chris-Craft claims to have suffered the latter type of harm,6 it has asserted a cause of action created by the statute.
163
Section 14(e) was patterned after § 14(a), which regulates proxy contests.7 It is clear that a shareholder may recover in a suit under § 14(a) even though he was not himself deceived by the misrepresentation.8 I do not understand why § 14(e) should receive any narrower construction.9 At the very least, the Court should allow all shareholders injured by a violation of § 14(e) to assert a damages claim against the wrongdoer. Neither the extraordinary size of Chris-Craft's investment in Piper stock, nor the fact that the stock had been owned for only a few months, should deprive Chris-Craft of the right to assert a remedy available to the other members of the shareholder class which § 14(e) was plainly designed to protect.
II
164
Even if we disregard Chris-Craft's stock ownership in Piper and focus only on its status as a tender offeror, it remains clear to me that its legal rights were invaded by the defendants' violation of § 14(e). This conclusion is compelled by (a) a fair evaluation of the legislative purpose in the light of the rationale of J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423, and (b) respect for the opinions of the Securities and Exchange Commission and the numerous federal judges who have recognized that § 14(e) is little more than a restatement of Rule 10b-5 unless it has broadened the class of potential litigants who may challenge defective cash tender offers to include rival contestants for control as well as shareholders.
A.
165
In Borak a unanimous Court held that the 1934 Act had implicitly authorized a shareholder to bring an action for rescission or damages for a violation of § 14(a). Such a remedy was regarded as essential for the protection of investors10 because practical considerations made it impossible for the SEC to enforce the proxy statement requirements completely and effectively.11 This practical concern applies with even greater force to tender offers which are processed on a highly expedited schedule.12
166
In both proxy and tender offer contests, the remedy which will most effectively deter violations of the statute is unquestionably the private damages action.13 Under these circumstances, as the Court stressed in Borak, supra, "it is the duty of the courts to be alert to provide such remedies are as necessary to make effective the congressional purpose." 377 U.S., at 433, 84 S.Ct., at 1560.
167
If a private remedy must be implied to ensure full compliance with the statute, the remedy must be available to the litigants who are most vitally interested in effective enforcement. This is the essence of the Borak holding which was given emphasis by its quotation from Deckert v. Independence Shares Corp., 311 U.S. 282, 288, 61 S.Ct. 229, 233, 85 L.Ed. 189:
168
" 'The power to enforce implies the power to make effective the right of recovery afforded by the Act. And the power to make the right of recovery effective implies the power to utilize any of the procedures or actions normally available to the litigant according to the exigencies of the particular case.' " 377 U.S., at 433-434, 84 S.Ct., at 1560 (emphasis in original).
169
The potential litigants who have the most to gain from enforcement of the statute and the most to lose if its provisions can be ignored with impunity are plainly the rival contestants. Surely the contestants are in a much better position and have a much greater incentive than a mere shareholder to detect and to challenge conduct prohibited by the Williams Act. Once one recognizes that Congress intended to rely heavily on private litigation as a method of implementing the statute, it seems equally clear that Congress would not exclude the persons most interested in effective enforcement from the class authorized to enforce the new law. Nor does it seem logical to assume that such authority would only reach actions brought for the benefit of the shareholders. It is fundamental in our adversary system that the selfish interest of the litigant provides the best guarantee that a claim will be effectively asserted.14 I see no reason to deny incumbent management the right to recover for its own losses as well as for such injuries as the shareholders may have suffered. After all, those insiders are often the specific target of the conduct that the statute was enacted to regulate.15
170
If management is included within the protected class, an outside tender offeror has an equally strong argument for inclusion. For the legislative history also indicates that Congress was concerned about misconduct by insiders as well as outsiders. And just as management will most effectively challenge violations by the invader, so it is equally clear that a company committed to an attempt to acquire control of a target company will be the most zealous guardian of the shareholders' interests in having management comply with the law. I find ample evidence of congressional interest in fair competition between outsiders and insiders in making and opposing tender offers to shareholders of the target company. That evidence persuades me that both contenders are included within the class of persons protected by § 14(e).16
B
171
The lower courts, along with the SEC, have consistently taken a broad view of standing under § 14(e).
172
In the appeal on liability in this case, the SEC's amicus memorandum in the Second Circuit argued that "if a rival company in a contest for corporate control has no standing to sue for violations of the securities laws, enforcement of recent Congressional legislation to assure fairness in such struggles will be hampered . . . ." Memorandum of SEC as Amicus Curiae in No. 72-1064 (CA2), p. 12. In its brief before this Court, the SEC continues to insist that "(e)ven more necessary (than in Borak ) are such private rights of action to supplement Commission actions to effectuate the Congressional purposes in enacting the Williams Act," Brief for SEC as Amicus Curiae 12. It devotes a full 55 pages of its brief to arguing that providing a private remedy in this case is necessary to insure enforcement of the Act and is consistent with the congressional intent. The SEC's expertise in the securities field, and its intimate involvement in the passage of the Act, entitle its views to respect.
173
The Courts of Appeals have also taken an expansive view of standing under § 14(e). Shortly after § 14(e) was passed, for example, Judge Friendly pointed out that the section's only possible addition to existing case law was its possible impact on standing, and indicated that both nontendering shareholders and the corporation have standing, Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937, 940-941, 946 (CA2 1969). Accord, Smallwood v. Pearl Brewing Co., 489 F.2d 579, 596 (CA5, 1974). In another Second Circuit case, the court commented that § 14(e) "should serve to resolve any doubts about standing in the tender offer cases, even where an offeror is not . . . in the position of a forced seller." Crane Co. v. Westinghouse Air Brake Co., 419 F.2d 787, 798-799 (1969). In the present case, while the Court of Appeals judges disagreed sharply on several issues, there was agreement on standing. Judge Mansfield, in his separate opinion, explained:
174
"The federal securities laws are silent on the subject of a private party's standing to sue. Indeed, neither § 14(e) nor § 10(b) or Rule 10b-5 state that purchasers, sellers, or exchangers of securities have the right to sue. However, their implied standing to sue has long since been judicially established . . . . I would recognize CCI's standing solely on the ground that vigorous enforcement of the anti-fraud provisions through private litigation . . . calls for similar implication of a private right of action in favor of a defeated contestant against the successful bidder for control for damages caused by the latter's violation of that section, . . . especially in view of our willingness to permit the target corporation to seek relief against the offeror under § 14(e)." 480 F.2d 341, 396 (CA2 1973). (Citations omitted.)
175
The First Circuit, relying heavily on these decisions, has also extended standing to obtain damages to tender offerors, H. K. Porter Co. v. Nicholson File Co., 482 F.2d 421, 424-425 (1973), and the Fifth Circuit has cited them with apparent approval. Smallwood v. Pearl Brewing Co., supra, 489 F.2d, at 596, and n. 20.17
III
176
Petitioners view Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26, as foreclosing standing in this case because tender offerors do not belong to the "especial class" Congress intended to benefit. I am convinced, however, that the controlling authority is not Cort, but J. I. Case Co. v. Borak, supra. In Borak, the Court held that a derivative suit on behalf of the corporation could be brought under § 14(a), see 377 U.S., at 431, 84 S.Ct., at 1559, although it seems clear that the primary beneficiaries of that section were individual stockholders rather than corporations. Thus, Borak itself does not meet the majority's "especial class" test.18 But Cort carefully distinguished Borak on grounds that apply equally to this case. In this case, as in Borak, there is "at least a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone," Cort, 422 U.S., at 79, 95 S.Ct., at 2088; see id., at 79 n. 11, 95 S.Ct., at 2088; there is a "pervasive legislative scheme governing the relationship between the plaintiff class and the defendant class in a particular regard," id., at 82, 95 S.Ct., at 2090, the private remedy is necessary to effectuate the congressional goal, id., at 84, 95 S.Ct., at 2090, and that goal will accordingly be hindered if the plaintiff is relegated to an inadequate state remedy, id., at 85, 95 S.Ct., at 2091. Thus, in the kind of situation presented by Borak and this case, Cort does not require that the plaintiff belong to the "especial class" as one of four relevant factors to be considered; nowhere does it say that this factor is essential. And in discussing this factor, the Court suggested the existence of a "pervasive legislative scheme" as an alternative to an "articulated federal right in the plaintiff," id., at 82, 95 S.Ct., at 2090. I conclude that Cort does not bar Chris-Craft's action, and that Borak remains a viable precedent. As shown in Part II-H, supra; Borak compels a holding that Chris-Craft has standing.
177
The "especial class" argument, besides being based on a misreading of Cort and Borak, is also based on the mistaken belief that congressional desire to protect shareholders is in some way inconsistent with providing tender offerors with a right to damages.
178
It is true that Congress was deeply concerned about the individual stockholder faced with a tender offer. Congress did not, however, view this shareholder's interest as being distinct from the interests of others affected by his decision. As noted in the discussion of Chris-Craft's standing as a shareholder, Congress also intended to protect those who would remain shareholders after the successful tender offer, supra, at 56-57, n. 5; see also supra, at 62-63, n. 15. Like these shareholders, the participants in the tender contest were seen as having an interest in the integrity of the process. Senator Williams, in explaining the purposes of the bill, stated:
179
"I have taken extreme care with this legislation to balance the scales equally to protect the legitimate interests of the corporation, management, and shareholders without unduly impeding cash takeover bids. Every effort has been made to avoid tipping the balance of regulatory burden in favor of management or in favor of the offeror. The purpose of this bill is to require full and fair disclosure for the benefit of stockholders while at the same time providing the offeror and management equal opportunity to fairly present their case.19 Experience . . . has amply demonstrated that the disclosure requirements of the Federal securities acts are an aid to legitimate business transactions, not a hindrance." 113 Cong.Rec. 854-855 (1967) (emphasis added).
180
"(This bill will put all on) an equal footing with respect to the availability of significant facts about a tender offer . . . . All will be able to deal in the securities markets knowing that all the pertinent facts are available." Id., at 856.
181
Indeed, protection of tender offerors is not only consistent with protection of shareholders. It is also indispensable to protecting shareholders. Individual shareholders often lack the capacity to litigate these cases effectively. Few indeed could afford to pursue the course Chris-Craft has taken of hiring counsel with experience in complex litigation of this kind to litigate, through a preliminary injunction, discovery, trial on liability, another trial on damages, three appeals to the Second Circuit, including an en banc, and three petitions to this Court. Thus, the most realistic deterrent to fraud on shareholders is a damages suit brought by the opposition in the tender contest. Moreover, disallowing such suits creates an incentive to violate the Act in retaliation for violations by the other side. When no effective judicial remedy is available, self-help is more attractive. Finally, a damages remedy for the tender offeror is necessary for the protection of one particular class of shareholders: those shareholders of target corporations who accept an exchange offer and thereby become shareholders of the tender offeror. In the instant case, 112,089 Piper shares were tendered to Chris-Craft as part of an exchange offer effective July 24. The tendering shareholders took the risk that Chris-Craft might lose in a fair tender contest. But they did not assume the risk that Bangor Punta would illegally deprive Chris-Craft of its opportunity to gain control. These shareholders are certainly within the especial class § 14(e) was intended to protect. Only by making Chris-Craft whole can the expectations of these shareholders be vindicated.20
182
Petitioners' answer to all this is that an award of damages to Chris-Craft would harm the former Piper shareholders who exchanged their stock for Bangor Punta stock. This answer is unsatisfactory for three reasons. First, I am unpersuaded that the federal courts are incapable of structuring the remedy to avoid this problem. See H. K. Porter Co. v. Nicholson File Co., 482 F.2d 421, 425 (CA1 1973). Second, in many cases the problem will not arise, either because the size of the judgment will be small in relation to the defendants' assets, or because most or all of the tendering shareholders will have sold their stock by the time of the judgment. Third, the argument provides no basis for distinguishing between private plaintiffs. Any monetary recovery against Bangor Punta by any plaintiff potentially decreases the value of Bangor Punta's stock.21
183
In sum, in my judgment the disposition of the standing issue by the Court of Appeals for the Second Circuit was consistent with this Court's prior decisions as well as the unanimous view of other Circuits. The fact that error may have been committed in this litigation in the consideration of the liability and damages issues or might be committed in other cases should not be permitted to color the analysis of the threshold standing issue. On that issue unless the basic policy of construing securities legislation liberally to protect investors, which motivated this Court's decisions in this area of the law for decades, is to be repudiated a fair evaluation of the statute requires affirmance.
184
Since the Court does not address the other questions presented by the certiorari petitions, neither shall I. I must, however, register my additional dissent from the Court's action in volunteering to decide and in deciding incorrectly a question not raised by the parties. The Court's reversal of the injunction entered by the District Court pursuant to the direction of the Court of Appeals is, as far as I can determine, totally unprecedented.
185
I frankly do not understand the reasoning which leads the Court to conclude that the injunction was "premised" upon the damages award. Ante, at 47. The injunction was an independent remedy premised on the violations of law found by the lower courts. Setting aside the damages recovery provides an additional reason for permitting the injunction to remain in effect; surely that action does not logically support the conclusion that there should be no remedy whatsoever for violations which the Court assumes, arguendo, were properly proved.
186
My reading of the relevant portions of the record do not persuade me that Chris-Craft made a binding election to waive any right to equitable relief,22 particularly since it must be kept in mind that all parties had assumed that a damages remedy was available.23 If there has been any relevant waiver, it is by the petitioners who did not challenge the injunction in this Court.24 In reaching out to decide this unargued question, the Court takes a liberal view of the "plain error" doctrine which I consider unacceptable.
187
Accordingly, without explaining my views about the issues not decided by the Court,25 I respectfully dissent from its judgment.
1
The cash tender offer indicated that Chris-Craft reserved the right to purchase shares in excess of the 300,000 specified amount.
2
Rule 10b-6 provides in pertinent part:
"(a) It shall constitute a 'manipulative or deceptive device or contrivance' as used in section 10(b) of the act for any person,
"(1) Who is an underwriter or prospective underwriter in a particular distribution of securities, or
"(2) Who is the issuer or other person on whose behalf such a distribution is being made, or
"(3) Who is a broker, dealer, or other person who has agreed to participate or is participating in such a distribution, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, either alone or with one or more other persons, to bid for or purchase for any account in which he has a beneficial interest, any security which is the subject of such distribution, or any security of the same class and series, or any right to purchase any such security, or to attempt to induce any person to purchase any such security or right, until after he has completed his participation in such distribution."
3
Less than three weeks later, the SEC brought an action in Federal District Court charging that the Bangor press release violated "gun-jumping" provisions, 15 U.S.C. § 77e(c), and Rule 135, 17 CFR § 230.135 (1975), by stating a specific dollar valuation for unregistered securities. Without admitting any of the allegations, Bangor and Piper consented to a permanent injunction against similar releases before the effective date of Bangor's registration statement.
4
SEC Release No. 8595, May 5, 1969, CCH Fed.Sec.L.Rep. P 77,706, p. 83,617.
5
Shortly after the contest for control was completed, Bangor entered into an agreement to sell the BAR for $5 million, thereby resulting in a $13.8 million book loss.
6
Since the respective distributions of securities pursuant to the exchange offers had been completed at this point, the legality of these market purchases was unchallenged.
7
The reason for Chris-Craft's withdrawal from the contest is a matter in dispute. According to one view, espoused by Judge Mansfield at one stage in the ensuing litigation, Chris-Craft had " 'shot its bolt' in the financial sense by early February 1969 . . .. It was in no position to purchase for cash any appreciable amount of Piper shares over and above the 304,606 tendered in response to its initial cash offer." 480 F.2d 341, 402 (C.A.2 1973).
8
Chris-Craft's earlier purchases, which were challenged by the SEC on the basis of Rule 10b-6, were open-market purchases. Mr. Siegel promptly stopped the purchases at the SEC's behest. Supra, at 6.
9
Rule 10b-6 is set out in part at n. 2, supra. The Rule, among other things, prohibits an issuer or underwriter from purchasing any security which is the subject of a distribution. Eleven separate exemptions are created, however, including "unsolicited privately negotiated purchases (of stock) . . . effected neither on a securities exchange nor from or through a broker or dealer. . . . " 17 CFR § 240.10b-6(a)(3)(ii) (1975).
10
Two other judges wrote separately. Judge Moore expressed doubts as to the majority's legal conclusions concerning Bangor's alleged violations. He stated that he would not pass on any issue other than the propriety of the denial of injunctive relief. Judge Anderson, while concurring, expressed separate views concerning the materiality of the $80 valuation estimate in the May 8 press release.
11
Judge Pollack avoided the § 14(e) issue by ruling against Chris-Craft on the merits of its antifraud claims under Rule 10b-5, with respect to which Chris-Craft's standing was assumed. 337 F.Supp., at 1134.
12
Judge Pollack "assumed" that Chris-Craft had standing under Rule 10b-5, but the Court of Appeals expressly avoided passing on that issue, since it determined that Chris-Craft had standing under § 14(e).
13
Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937 (1969) (suit by a target corporation against a tender offeror for injunctive relief); Butler Aviation Int'l, Inc. v. Comprehensive Designers, Inc., 425 F.2d 842 (1970) (suit for a preliminary injunction by a target corporation against a tender offeror); Crane Co. v. Westinghouse Air Brake Co., 419 F.2d 787 (1969) (action for an injunction under § 10(b) by a tender offeror against the target corporation); Iroquois Industries, Inc. v. Syracuse China Corp., 417 F.2d 963 (1969), cert. denied, 399 U.S. 909, 90 S.Ct. 2199, 26 L.Ed.2d 561 (1970) (action under § 10(b) by a tender offeror against the target corporation).
14
The District Court had looked to whether Chris-Craft would have succeeded in securing control even if Bangor had abided by the securities laws. In its analysis of causation, the Court of Appeals expressly agreed that Chris-Craft "failed to show with reasonable certainty that it would have obtained a controlling position in Piper had it not been for the violations . . ." of Bangor and First Boston. 480 F.2d at 373. Nonetheless, causation was found. See generally Note, Chris-Craft: The Uncertain Evolution of Section 14(e), 76 Colum.L.Rev. 634, 650-658 (1976).
15
Following the Court of Appeals' decision, petitions for review were filed in this Court by First Boston, Bangor Punta, and the Piper defendants. Certiorari was denied. 414 U.S. 910, 94 S.Ct. 231, 232, 38 L.Ed.2d 148 (1973).
16
The proliferation of cash tender offers as devices for securing corporate control is analyzed in detail in Hayes & Taussig, Tactics of Cash Takeover Bids, 45 Harv.Bus.Rev. 135 (Mar.-Apr. 1967). See also E. Aranow & H. Einhorn, Tender Offers for Corporate Control 2-10 (1973).
17
The SEC had proposed that the pro rata requirement be applied throughout the duration of the offer. Hearings on S. 510 before the Subcommittee on Securities of the Senate Committee on Banking and Currency, 90th Cong., 1st Sess., 200 (1967) (hereinafter Senate Hearings). See generally Cohen, A Note on Takeover Bids and Corporate Purchases of Stock, 22 Bus.Law. 149, 153-154 (1966). See also 6 L. Loss, Securities Regulation 3662 (Supp.1969). This open-ended proposal came under substantial criticism in the legislative hearings, and Congress finally enacted a 10-day limitation on the pro rata acceptance requirement. The 10-day period was identical to the practice followed by the New York Stock Exchange. Senate Hearings 76.
18
Hayes & Taussig, Tactics of Cash Takeover Bids, supra, n. 16.
19
Requiring the tender offeror to reveal detailed information at the outset of the quest for control would, under the critics' analysis, fortify management's position in rebuffing contestants' efforts.
20
Only last Term we indicated that similar materials in the legislative history of the 1934 Act were of limited value.
"Remarks of this kind made in the course of legislative debate or hearings other than by persons responsible for the preparation or the drafting of a bill are entitled to little weight." Ernst & Ernst v. Hochfelder, 425 U.S. 185, 204 n. 24, 96 S.Ct. 1375, 1386, 47 L.Ed.2d 668 (1976).
See generally 2A C. Sands, Sutherland on Statutes and Statutory Construction § 48.06, p. 203 (4th ed. 1973).
21
The dissent emphasizes that Borak involved a derivative suit brought on behalf of the corporation, in addition to the shareholder's direct cause of action. Since corporations were not the primary beneficiaries of § 14(a) the proxy provision involved in Borak the dissent concludes that Borak itself fails to meet the "especial class" requirement articulated by our subsequent decision in Cort v. Ash. Post, at 66-67. But this is a misreading of Borak ; there, the Court observed that deceptive proxy solicitations violative of § 14(a) injure the corporation in the following sense:
"The damage suffered results not from the deceit practiced on (the individual shareholder) alone but rather from the deceit practiced on the stockholders as a group." 377 U.S., at 432, 84 S.Ct., at 1560.
The Borak Court was thus focusing on all stockholders the owners of the corporation as the beneficiaries of § 14(a). Stockholders as a class therefore plainly constituted the "especial class" for which the proxy provisions were enacted. This reading of Borak comports with the statement of the question presented in that case:
"We consider only the question of whether § 27 of the Act authorizes a federal cause of action for rescission or damages to a corporate stockholder with respect to a consummated merger . . . ." 377 U.S., at 428, 84 S.Ct., at 1558. (Emphasis supplied.)
22
In this connection, Chris-Craft emphasizes Congress' intent to treat tender offers in the same way as proxy solicitations, since both are devices for seeking corporate control. This argument, however, does not support the proposition that Chris-Craft should have a cause of action for damages, since this Court had not then held, nor has it since, that defeated insurgents in a proxy fight, suing in a capacity other than that of a shareholder, have a cause of action for damages. There is no occasion to resolve that question in this case.
23
The dissent's approach fails to focus upon the precise goals served by the Williams Act, an indispensable inquiry under Borak. Both Chris-Craft and Bangor Punta were, to be sure, Piper shareholders once each had embarked upon an attempt to gain control of the target company. But neither offeror-bidder stood in the shoes of the Act's intended beneficiaries. "(T)his bill is (designed) to provide the investor, the person who is required to make a decision, an opportunity to examine and to assess the relevant facts . . . ." Senate Hearings 15. (Emphasis supplied.) In short, the dissent overlooks the fact that in no meaningful sense was either Chris-Craft or Bangor Punta, as a tender offeror, a "target shareholder" of Piper.
24
In light of our holding there is, of course, no occasion to pass on the Court of Appeals' underlying determination that petitioners actually violated the securities laws in their efforts to defeat Chris-Craft's bid. See also infra, at 43, n. 30.
25
These cases, of course, do not present that issue, and we express no view on it.
26
The liability of the Piper family petitioners is instructive in this regard. Several able federal judges, including District Judges Tenney and Pollack and Chief Judge Lumbard of the Second Circuit, have expressly concluded that the Piper defendants did not violate the securities laws in their efforts to defeat Chris-Craft's bid. Judge Mansfield, while of the view that the Pipers had violated § 14(e), was convinced that their violations had not caused injury to Chris-Craft. The legal uncertainties that inevitably pervade this area of the law call into question whether "deterrence" of § 14(e) violations is a meaningful goal, except possibly with respect to the most flagrant sort of violations which no reasonable person could consider lawful. Such cases of flagrant misconduct, however, are not apt to occur with frequency, and to the extent that the violations are obvious and serious, injunctive relief at an earlier stage of the contest is apt to be the most efficacious form of remedy.
27
The dissent suggests that the SEC's "intimate involvement in the passage of the Act, entitle(s) its views to respect." Post, at 64. We note, first, that the present position of the SEC is not consistent with the testimony of the SEC Chairman in the legislative evolution of § 14(e). Even if the agency spoke with a consistent voice, however, its presumed "expertise" in the securities-law field is of limited value when the narrow legal issue is one peculiarly reserved for judicial resolution, namely whether a cause of action should be implied by judicial interpretation in favor of a particular class of litigants. Indeed, in our prior cases relating to implied causes of action, the Court has understandably not invoked the "administrative deference" rule, even when the SEC supported the result reached in the particular case. J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Superintendent of Ins. v. Bankers Life & Cas. Co., 404 U.S. 6, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971). That rule is more appropriately applicable in instances where, unlike here, an agency has rendered binding, consistent, official interpretations of its statute over a long period of time. E. g., United States v. National Assn. of Securities Dealers, 422 U.S. 694, 719, 95 S.Ct. 2427, 2442, 45 L.Ed.2d 486 (1975); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1965).
28
Our holding is a limited one. Whether shareholder-offerees, the class protected by § 14(e), have an implied cause of action under § 14(e) is not before us, and we intimate no view on the matter. Nor is the target corporation's standing to sue in issue in this case. We hold only that a tender offeror, suing in its capacity as a takeover bidder, does not have standing to sue for damages under § 14(e).
Our precise holding disposes of many observations made in dissent. Thus, the argument with respect to the "exclusion" from standing for "persons most interested in effective enforcement," post, at 62, is simply unwarranted in light of today's narrow holding.
29
Rule 10b-6 is set forth in part in n. 2, supra.
30
We therefore have no occasion to consider whether the cash purchases by Bangor actually violated Rule 10b-6, and we express no view on that question. The issue is of secondary importance, since Rule 10b-13 now expressly covers this type of transaction.
31
In Blue Chip, we applied the Birnbaum rule, Birnbaum v. Newport Steel Corp., 193 F.2d 461 (C.A.2), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), which limited standing under Rule 10b-5 to purchasers or sellers of securities.
32
Section 9(a)(6) provides:
"(a) It shall be unlawful for any person, directly or indirectly, by the use of the mails or any means or instrumentality of interstate commerce, or of any facility of any national securities exchange, or for any member of a national securities exchange
"(6) To effect either alone or with one or more other persons any series of transactions for the purchase and/or sale of any security registered on a national securities exchange for the purpose of pegging, fixing, or stabilizing the price of such security in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors."
33
We intimate no view upon whether as a general proposition a suit in equity for injunctive relief, as distinguished from an action for damages, would lie in favor of a tender offeror under either § 14(e) or Rule 10b-6.
34
The fact that the parties did not separately enumerate the injunction issue in their petitions for certiorari does not preclude review. The Court has in the exercise of its discretion traditionally examined matters of importance not specifically assigned as error by the parties. E. g., Carpenters and Joiners of America v. United States, 330 U.S. 395, 412, 67 S.Ct. 775, 784, 91 L.Ed. 973 (1947); Sibbach v. Wilson & Co., 312 U.S. 1, 16, 61 S.Ct. 422, 427, 85 L.Ed. 479 (1941); Mahler v. Eby, 264 U.S. 32, 45, 44 S.Ct. 283, 288, 68 L.Ed. 549 (1924). Cf. this Court's Rule 40(d)(2); Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Exercise of this discretion is called for under these unusual circumstances, since a sweeping equitable remedy was ordered by the Court of Appeals to supplement an improper award of damages.
1
Like the dissenters, I also accept the premise that the petitioning defendants violated § 14(e) and Rule 10b-6.
2
The Rule 10b-6 violations do not raise the question of disclosure or nondisclosure of material fact, since that Rule deals with market manipulation. Thus, on this feature, the Mills-Affiliated Ute Citizens presumptions do not even enter the case.
3
The dissenters note that Chris-Craft's recovery included elements of damages that were not dependent on proof that it actually would have acquired control of Piper. Since I view the ultimate injury to be the frustration of Chris-Craft's efforts to obtain control of Piper, cf. opinion of the Court, ante, at 24, I think that the recovery should not have included elements unrelated to the failure to achieve control. Furthermore, even if the injury was merely the diminished opportunity for success, I would still find the proof of causation inadequate. Because Chris-Craft's January offer was a complete success, and its financial resources were practically exhausted, the presumption that more Piper shareholders would have tendered but the violations committed by the Pipers and First Boston was rebutted. Similarly, the uncertainties surrounding the probable effect of the BAR omissions on the shareholders' decisions make it impossible to presume that Chris-Craft's chances of success were lessened by that violation. Finally, the fact that the price of Piper shares was uninfluenced by the alleged Rule 10b-6 violation negates the possibility of injury on a diminished-opportunity theory just as surely as on a failure-to-succeed theory. I would therefore find a failure to prove causation under either view of Chris-Craft's injury.
1
This is the third chapter in the history of this monumental litigation. There have been three trials, three appeals, and three groups of certiorari petitions. Only the questions presented by the certiorari petitions granted on April 5, 1976, 425 U.S. 910, 96 S.Ct. 1505, 47 L.Ed.2d 760, are before us. For the purpose of analyzing the standing issue, we must accept the premise that the petitioning defendants are guilty of violating § 14(e) and Rule 10b-6.
2
In P 64 of its second amended complaint, Chris-Craft alleged: "The foregoing acts and courses of conduct by the defendants . . . sharply decreased the value of Chris-Craft's holdings in Piper . . . ." App. F-26. In its opinion on liability, the Court of Appeals noted: The specific injury sustained (by Chris-Craft) was a reduction in the value of (its) Piper holdings . . . ." Id., at A-60.
3
Chris-Craft also alleged that "but for the unlawful acts of the defendants described herein, Chris-Craft would have achieved control of Piper," or at least would have paid less for stock it did acquire. Second amended complaint P 65, App. F-26. In view of these separate allegations it is a little difficult to understand the suggestion, ante, at 35-37, that Chris-Craft is not suing for injuries sustained in its status as a Piper shareholder. The fact that the Court of Appeals correctly regarded Chris-Craft's status as a tender offeror as an adequate basis for relief does not imply rejection of its claim as a shareholder, particularly since the damages awarded by the Court of Appeals included compensation for the impaired value of its Piper holdings.
4
Although originally one might have argued that the private remedies created by the Securities Acts are limited to those expressly described in the legislation itself, history has foreclosed any such argument today. The statutes originally enacted in 1933 and 1934 have been amended so often with full congressional awareness of the judicial interpretation of Rule 10b-5 as implicitly creating a private remedy that we must now assume that Congress intended to create rights for the specific beneficiaries of the legislation as well as duties to be policed by the SEC. This case therefore does not present the same kind of issue discussed in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26, namely, whether the statute created an implied private remedy. Rather, the question presented here is who may invoke that remedy. Nevertheless, it is noteworthy that none of the factors identified in the Cort opinion militates against implying a private cause of action in favor of Chris-Craft. Indeed, it is beyond dispute that here, as in J. I. Case Co. v. Borak, 377 U.S. 426, 431-433, 84 S.Ct. 1555, 1559-1560, 12 L.Ed.2d 423, the asserted private remedy would unquestionably aid the "primary goal" of the statute. See Cort, supra, 422 U.S., at 85, 95 S.Ct., at 2091.
5
In its discussion of the need for the legislation, the House Committee Report stated:
"The public shareholder must, therefore, with severely limited information, decide what course of action he should take. He has many alternatives. He can tender all of his shares immediately and hope they are all purchased. However, if the offer is for less than all the outstanding shares, perhaps only a part of them will be taken. In these instances, he will remain a shareholder in the company, under a new management which he has helped to install without knowing whether it will be good or bad for the company.
"The shareholder, as another alternative, may wait to see if a better offer develops, but if he tenders late, he runs the risk that none of his shares will be taken. He may also sell his shares in the market or hold them and hope for the best. Without knowledge of who the bidder is and what he plans to do, the shareholder cannot reach an informed decision. He is forced to take a chance. For no matter what he does, he does it without adequate information to enable him to decide rationally what is the best possible course of action. This is precisely the kind of dilemma which our Federal securities laws are designed to prevent.
"The competence and integrity of a company's management, and of the persons who seek management positions, are of vital importance to stockholders. Secrecy in this area is inconsistent with the expectations of the people who invest in the securities of publicly held corporations and impairs public confidence in securities as a medium of investment." H.R.Rep.No.1711, 90th Cong., 2d Sess., 2-3 (1968) (hereinafter House Report); U.S. Code Cong. & Admin. News 1968, p. 2812.
"It was urged during the hearings that takeover bids should not be discouraged because they serve a useful purpose in providing a check on entrenched but inefficient management. It was also recognized that these bids are made for many other reasons, and do not always reflect a desire to improve the management of the company. The bill avoids tipping the balance of regulation either in favor of management or in favor of the person making the takeover bid. It is designed to require full and fair disclosure for the benefit of investors while at the same time providing the offeror and management equal opportunity to fairly present their case." Id., at 4; U.S.Code Cong. & Admin.News 1968, p. 2813.
6
Chris-Craft's recovery included damages for the impaired value of its holdings measured by the loss of the control premium its stock would have commanded but for the defendants' violations, and by the additional loss of value resulting from its position as a locked-in holder of an exceptionally large block. These elements of damages relate only to the stock actually owned by Chris-Craft and therefore are distinguishable from damages suffered in its capacity as a tender offeror which are measurable by the loss of the opportunity to exercise control. It is not correct to characterize these items of damages as related only to Chris-Craft's status as a tender offeror. See ante, at 36-37. On the contrary, any owner of an equally large block would lose the control premium that block could previously have commanded on the market, and would suffer a further loss if the company had passed into hostile hands. For instance, members of the Piper family could have claimed damages of this kind if they had remained shareholders in Piper and Chris-Craft had illegally gained control.
The Court suggests that Chris-Craft should be denied standing because the damages it seeks are "actually related under these circumstances to Chris-Craft's status as a contestant for control . . . ." Ante, at 36 (emphasis in original). The italicized phrase may be intended to imply that a shareholder who was not also a tender offeror could recover these items of damages. If so, the Court fails to explain why a tender offeror should be denied like relief. The congressional goal of neutrality with respect to tender offers would be impaired if persons holding large control blocks were granted greater rights than tender offerors who challenge their control.
On the other hand, the Court may mean that a shareholder's damages recovery may not include elements attributable to the size of its holdings. (The remainder of this paragraph of the opinion lends itself to this interpretation by distinguishing between "typical," or "ordinary" shareholders, and owners of large blocks.) This restriction on the damages recovery would be unsound. There is no reason to think that Congress would have intended anything less than a "make whole" remedy for shareholders. If I am correct that the purpose of the Williams Act was to protect the interests of shareholders, and others, in the integrity of the process of determining corporate control, see n. 5, supra, and infra at 67-68, at this kind of damages recovery could provide some measure of the value to the large shareholder of these interests.
7
Both the Senate and the House Committee Reports refer to the cash tender offer as similar to a proxy contest.
8
In Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593, minority shareholders brought suit to set aside a merger on the ground that a proxy solicitation had been misleading. The suit was brought before the merger; obviously the plaintiffs were then aware of the misrepresentation, and in fact they voted against the merger, 403 F.2d 429, 435 (C.A.7 1968), which was consummated despite their votes. This Court held that the minority shareholders were entitled to some relief, and while not specifying that relief, noted that "(m)onetary relief will, of course, also be a possibility." 396 U.S., at 388, 90 S.Ct., at 623. If the defect in the proxy solicitation related to a term of the merger, an accounting could be ordered so that the shareholders would "receive the value that was represented as coming to them"; otherwise, monetary relief would be available "if the merger resulted in a reduction of the earnings or earnings potential of their holdings." Id., at 388-389, 90 S.Ct., at 624. This holding in Mills was consistent with the earlier statement in J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423:
"The injury which a stockholder suffers from corporate action pursuant to a deceptive proxy solicitation ordinarily flows from the damage done the corporation, rather than from the damage inflicted directly upon the stockholder. The damage suffered results not from the deceit practiced on him alone but rather from the deceit practiced on the stockholders as a group." Id., at 432, 84 S.Ct., at 1560.
9
The tender offer is just one species of solicitation that either an incumbent or an outside group may use in a contest for control of a corporation. Power to direct the destiny of the corporation may be obtained by acquiring proxies for a majority of the shares, by acquiring the shares themselves, or more typically by a combination of proxies and actual purchases. Section 14 broadly prohibits fraudulent solicitations, not merely to protect the individual shareholder from casting a misguided vote or from making an ill-advised sale, but more importantly to protect the corporate entity as a whole from the consequences of a vital decision procured by fraud.
10
It is noteworthy that in the Borak opinion the Court consistently used the word "investors" rather than the word "shareholders" to describe the protected class.
11
"The injury which a stockholder suffers from corporate action pursuant to a deceptive proxy solicitation ordinarily flows from the damage done the corporation, rather than from the damage inflicted directly upon the stockholder. The damage suffered results not from the deceit practiced on him alone but rather from the deceit practiced on the stockholders as a group. To hold that derivative actions are not within the sweep of the section would therefore be tantamount to a denial of private relief. Private enforcement of the proxy rules provides a necessary supplement to Commission action. As in antitrust treble damage litigation, the possibility of civil damages or injunctive relief serves as a most effective weapon in the enforcement of the proxy requirements. The Commission advises that it examines over 2,000 proxy statements annually and each of them must necessarily be expedited. Time does not permit an independent examination of the facts set out in the proxy material and this results in the Commission's acceptance of the representations contained therein at their face value, unless contrary to other material on file with it. Indeed, on the allegations of respondent's complaint, the proxy material failed to disclose alleged unlawful market manipulation of the stock of (the American Tractor Corp.) and this unlawful manipulation would not have been apparent to the Commission until after the merger.
"We, therefore, believe that under the circumstances here it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose." 377 U.S., at 432-433, 84 S.Ct., at 1560.
12
"As initially introduced, the bill would have required the disclosure statement to be filed with the Securities and Exchange Commission 5 days before the tender offer was made to allow the staff of the Securities and Exchange Commission an opportunity to review the material for compliance with the applicable requirements. At the hearings it was urged that this prior review was not necessary and in some cases might delay the offer when time was of the essence. In view of the authority and responsibility of the Securities and Exchange Commission to take appropriate action in the event that inadequate or misleading information is disseminated to the public to solicit acceptance of a tender offer, the bill as approved by the committee requires only that the statement be on file with the Securities and Exchange Commission at the time the tender offer is first made to the public." S.Rep.No.550, 90th Cong., 1st Sess., 4 (1967) (hereinafter Senate Report).
13
In the passage from Borak set out in n. 11, the Court described the possibility of civil damages or injunctive relief as "a most effective weapon" in the enforcement of the Securities Exchange Act. The efficacy of enforcement of the antitrust laws and the Civil Rights Acts by "private attorneys general" rests on precisely this premise.
For example, we have stated that cases rejecting the in pari delicto defense,
"were premised on a recognition that the purposes of the antitrust laws are best served by insuring that the private action will be an ever-present 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." Perma Mufflers v. International Parts Corp., 392 U.S. 134, 139, 88 S.Ct. 1981, 1984, 20 L.Ed.2d 982.
14
This is the basis of the standing requirement in its constitutional aspect. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663. As one of the draftsmen of the 1934 Act put it, "there is no policeman so effective as the one whose pocketbook is affected by the degree to which he enforces the law." Stock Exchange Practices, Hearings on S.Res. 84 (72d Cong.) and S.Res. 56 and S.Res. 97 (73d Cong.) before the Senate Committee on Banking and Currency, 73d Cong., 2d Sess., pt. 15, National Securities Exchange Act of 1934, p. 6518 (1934).
15
Consider the following testimony by Senator Kuchel, who described himself as a coauthor of the legislation.
"The competence and integrity of management and controlling persons are of vital importance to stockholders. And yet, the prospective purchasers on a cash tender offer need not and often do not reveal their intentions, their commitments, or even their identities to the corporate shareholders. Not only is the shareholder prevented from making an informed investment decision, but both he and the corporation may easily become the unknowing victims of the so-called corporate raider.
"Today, there are those individuals in our financial community who seek to reduce our proudest businesses into nothing but corporate shells. They seize control of the corporation with unknown sources, sell or trade away the best assets, and later split up the remains among themselves.
"The tragedy of such collusion is that the corporation can be financially raped without the management or the shareholders having any knowledge of the acquisitions. Using the cash tender offer as a vehicle, the purchases can be made in so-called street names or, even more commonly, by Swiss banks for an undisclosed account number. The corporate raider may thus act under a cloak of secrecy in obtaining the shares needed to put him on the road to a successful capture and liquidation of the company." Hearings on S. 510 before the Subcommittee on Securities of the Senate Committee on Banking and Currency, 90th Cong., 1st Sess., 42-43 (1967).
16
The use of terms such as "corporate raider" and "take-over pirate" in the argument of this case was misleading because they implied that the Williams Act was not intended to be neutral as between rival contestants for control. One thing that is abundantly clear from both the language of the statute and its legislative history is that the Act was not intended to tip the scales in favor of management.
17
We have been referred to two cases as restricting standing under § 14(e): Klaus v. Hi-Shear Corp., 528 F.2d 225, 232 (CA9 1975); Sargent v. Genesco, Inc., 492 F.2d 750 (CA5 1974). In both cases, however, there was no harmful misrepresentation to the protected shareholders. Hence, as the Sargent court noted, the issue was not "whether these plaintiffs were appropriate plaintiffs to enforce the duties created by (s) 14(e)," but rather, whether those duties were violated. Id., at 770 n. 28. In Klaus it was the tender offeror who was misled. 528 F.2d, at 232.
The commentators have supported the expansive view of standing under § 14(e). See, e. g., Bromberg, The Securities Law of Tender Offers, 15 N.Y.L.F. 459, 554 (1969); Hamilton, Some Reflections on Cash Tender Offer Legislation, 15 N.Y.L.F. 269, 291-292 (1969); Note, Chris-Craft and Loss of Opportunity to Control: The Lost Opportunity, 43 Ford.L.Rev. 820, 821 (1975); Comment, Remedies for Defrauded Tender Offerors Under Section 14(e) of the Securities Exchange Act of 1934, 62 Geo.L.J. 1693, 1695-1696 (1974); Note, Cash Tender Offers, 83 Harv.L.Rev. 377, 398-399 (1969); Comment, Tender Offers: The Liberalization of Standing Requirements Under Section 14(e), 7 U.San Fran.L.Rev. 561 (1973).
18
The Court reads Borak as though it merely sustained class relief on behalf of all shareholders. Ante, at 32-33, and n. 21. The Borak opinion itself, however, is explicit in its holding that "a right of action exists as to both derivative and direct causes." 377 U.S., at 431, 84 S.Ct., at 1559. Even under the Court's interpretation of Borak as protecting all shareholders, I do not understand today's holding that only some Piper shareholders are protected i. e., "ordinary" shareholders as opposed to holders of large blocks.
19
This language is also found in both the House and Senate Reports. House Report 4, Senate Report 3.
20
Because the injury to these shareholders "ordinarily flows from the damage done the corporation, rather than from the damage inflicted directly upon the stockholder," Borak, 377 U.S., at 432, 84 S.Ct., at 1560, it would be only a slight extension of Borak to allow these shareholders to bring a derivative action on behalf of Chris-Craft. Cf. id., at 432-433, 84 S.Ct., at 1559-1560. I would also allow Chris-Craft to bring the action.
21
Petitioners' argument would thus bar a suit by a person who had tendered a large number of shares to Bangor Punta, since a recovery on his behalf could injure other former Piper shareholders. It would also bar one of the remaining public shareholders in Piper from suing, either in his own behalf or on behalf of Piper, for Bangor Punta's illegal acquisition of control. Likewise, it would bar suit by a Piper shareholder who exchanged his stock for Chris-Craft stock, in the reasonable and legally protected expectation that Chris-Craft would have a fair opportunity to acquire control of Piper. Petitioners' argument simply cuts too far.
22
The only material in the record which I have been able to locate and
which is relevant to this issue is the following colloquy from a pretrial conference on September 25, 1970:
"MR. LIMAN: That has nothing to do with us, your Honor. I am speaking of Chris-Craft. I think that the argument was made that they shouldn't have to pay this woman in part because we were seeking to enjoin them here (the record does not contain the complete transcript and it is unclear what this refers to), but in the light of the way in which they have managed this company for a year I'm not seeking injunctive relief here. It wouldn't do me any good here to get back Piper. I am seeking damages. As to that I don't think I have anything to do with this case now. You can pay that woman as far as I am concerned.
"MR. RYAN: Do I understand that to be an irrevocable position, Mr. Liman?
"MR. LIMAN: You can understand that I am seeking damages here." App. in No. 72-1064 (CA2), p. 1105A.
Two pages later, the following exchange took place:
"THE COURT: I thought that you wanted them to rescind 112,000 shares, the 112,000 share transaction.
"MR. LIMAN: I want money now, your Honor.
"THE COURT: I know you say that now. But the papers up to this point, and in the Court of Appeals talked about having Bangor Punta give back the 112,000 shares or tender or rescind.
"MR. LIMAN: Not these shares that were involved here. The shares they got in the exchange offer, yes, your Honor. And at that time Piper was worth getting. But we lost that injunction to keep them from exercising control over Piper and they have consolidated their position, and I just don't think, with all the powers that this Court has, you could give effective injunctive relief that would put me in the position that I should have been in in August of 1969. That's why money is the only thing that is left. . . . " Id., at 1106A-1107A.
The position taken by Chris-Craft's counsel in the Court of Appeals was as follows:
"It is very difficult to conceive of how we can be put in a position to ever compete with Bangor Punta for control again particularly since they owned the swing blocks. If we were directed to sell them as the seller,
they could afford to buy them at any price since they were buying their own stock.
"So there were such practical difficulties in attempting to work out an equitable decree after two years in a frozen out minority position that a relief in which they were told paid for the shares now, 'You have done everything else to them,' seemed to be the most appropriate.
"However, if for any reason we are told that money damages are not appropriate in this case then we need equitable relief of some sort that will restore us to what we had lost the opportunity to do, which was, namely, control of Piper." Tr. of Oral Arg. in No. 72-1064 (CA2), p. 9. Somewhat later in argument, counsel repeated:
"I think that there is equitable relief that could be fashioned. Bangor Punta could be enjoined from voting the controlled shares. That would have the effect of putting Chris-Craft in a controlling position and they, of course, object very much to that." Id., at 16.
23
In its memorandum in opposition to Chris-Craft's motion for a preliminary injunction, Bangor Punta made this statement, pp. 24-25:
"Even assuming Chris-Craft can prove the allegations in its moving papers at a full trial after Bangor Punta has had the opportunity of properly preparing itself for trial, a money judgment will fully compensate Chris-Craft for any damages it allegedly suffered because the Public holders of the 107,574 shares elected to go with Bangor Punta."
24
Indeed, counsel for Bangor Punta expressly stated at oral argument that a tender offeror's standing to seek injunctive relief under § 14(e) was unchallenged. Tr. of Oral Arg. 12.
25
On the issue of causation, I would simply note that Chris-Craft's recovery includes elements of damages which were not dependent on proof that it would have acquired actual control but for petitioners' violations. And I should also note that I would not affirm the Court of Appeals' calculation of the total damages award.
| 78
|
430 U.S. 73
97 S.Ct. 911
51 L.Ed.2d 173
DELAWARE TRIBAL BUSINESS COMMITTEE et al., Appellants,v.Wanda June WEEKS et al. ABSENTEE DELAWARE TRIBE OF OKLAHOMA BUSINESS COMMITTEE et al., Appellants, v. Wanda June WEEKS et al. Cecil D. ANDRUS, Secretary of the Interior, et al., Appellants, v. Wanda June WEEKS et al.
Nos. 75-1301, 75-1335 and 75-1495.
Argued Nov. 10, 1976.
Decided Feb. 23, 1977.
Rehearings Denied June 6, 1977. See 431 U.S. 960, 97 S.Ct. 2688.
Syllabus
The Delaware Indians, who originally resided in the Northeastern United States, were gradually forced to move westward in the 19th century, and the tribe became geographically scattered. One group (the Cherokee Delawares), which initially had settled on a Kansas reservation as part of the tribe's main body, eventually moved to "Indian Country" in Oklahoma, became assimilated with the Cherokees, and is today a federally recognized tribe. Another group (the Absentee Delawares), which never joined the main body in Kansas, but migrated to Oklahoma and settled with the Wichita and Caddo Indians, is also a federally recognized tribe. A third group (the Kansas Delawares) lived with the main body on the Kansas reservation, but remained in Kansas when the Cherokee Delawares moved to Oklahoma; under an 1866 treaty the Kansas Delawares elected to become United States citizens and to receive individual parcels of land in Kansas on condition that they dissolve their relationship with the tribe and participate in tribal assets only to the extent of a "just proportion" of the tribe's credits "then held in trust by the United States," and the descendants of this group are not a federally recognized tribe. The question presented by this litigation is whether the Kansas Delawares were denied equal protection of the laws in violation of the Due Process Clause of the Fifth Amendment because they were excluded from the distribution of funds authorized by an Act of Congress, which provided for distribution of funds only to the Cherokee and Absentee Delawares pursuant to an award by the Indian Claims Commission to redress a breach by the United States of an 1854 treaty with the Delaware Tribe. Held :
1. The plenary power of Congress in matters of Indian affairs does not mean that an equal protection challenge to the instant distribution statute is not justiciable. "The power of Congress over Indian affairs may be of a plenary nature; but it is not absolute." United States v. Alcea Band of Tillamooks, 329 U.S. 40, 54, 67 S.Ct. 167, 174, 91 L.Ed.2d 29. The appropriate standard of judicial review is that the legislative judgment should not be disturbed "(a)s long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians," Morton v. Mancari, 417 U.S. 535, 555, 94 S.Ct. 2424, 2485, 41 L.Ed.2d 290. Pp. 83-85.
2. The exclusion of the Kansas Delawares from distribution under the Act does not offend the Due Process Clause of the Fifth Amendment, since on the record such exclusion was "tied rationally to the fulfillment of Congress' unique obligation toward the Indians." Pp. 85-89.
(a) The Kansas Delawares, not being a recognized tribal entity, are simply individual Indians with no vested rights in any tribal property, such as is distributed by the Act. As tribal property, the appropriated funds were subject to Congress' exercise of its traditional broad authority over the management and distribution of property held by recognized tribes, an authority "drawn both explicitly and implicitly from the Constitution itself," Morton v. Mancari, supra, at 551-552, 94 S.Ct. at 2483. Pp. 85-86.
(b) An earlier exclusion of the Kansas Delawares from participation in tribal assets in another Act settling claims of the Delaware Tribe, while not of itself legitimating their exclusion from the Act in question, nevertheless indicates that Congress has historically distinguished them from the Cherokee Delawares in distributing tribal awards. Pp. 86-87.
(c) It appears from the legislative history of the Act in question that Congress deliberately limited the distribution under the Act to the Cherokee and Absentee Delawares to avoid undue delay, administrative difficulty, and potentially unmeritorious claims, and this congressional choice is rationally supported, even though based on an unrelated experience in ignorance of the effect of the limitation of the distribution on the Kansas Delawares. Pp. 87-89.
406 F.Supp. 1309, reversed.
George B. Christensen, Chicago, Ill., A. Raymond Randolph, Jr., Washington, D.C., and Bernard J. Rothbaum, Jr., Oklahoma City, Okl., for appellants.
Delmer L. Stagner, Oklahoma City, Okl., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
An Act of Congress providing for distribution of funds to certain Delaware Indians, pursuant to an award by the Indian Claims Commission to redress a breach by the United States of an 1854 treaty, is challenged in this action by a group of Delawares excluded from the distribution. The question presented by this litigation is whether their exclusion denies them equal protection of the laws in violation of the Due Process Clause of the Fifth Amendment.1
2
* A brief history of the migrations of the Delaware Indians will serve as a helpful backdrop to the litigation.2 The Delawares originally resided in the Northeastern United States, in what are now southern New York, New Jersey, part of Pennsylvania, and part of Delaware. The Munsee Indians, related to the Delawares, resided in the northern part of that area. Under pressure from new settlers, both the Delawares and the Munsees were gradually forced to move westward, and by 1820 they were geographically scattered. During the trek westward the main branch of the Delawares stopped for varying lengths of time in what are now Ohio, Indiana, and Missouri, while others went to Arkansas, Oklahoma, and Texas. In 1818, the Delawares in Indiana ceded their lands in that State to the United States in return for a promise of land west of the Mississippi River.3 The Delawares then moved to Missouri for a short time, but under an 1829 "supplementary article" to the 1818 treaty, were again moved to what they were told would be their permanent residence on a reservation in Kansas.4 The establishment of this reservation was purportedly the fulfillment of the promise made in the 1818 treaty to provide western land in return for their agreement to leave their Indiana lands.
3
Some Delawares, however, never joined the main body of the Delawares on the Kansas reservation. Among these was a small group that migrated to Oklahoma and settled with the Wichita and Caddo Indians. For a time during the 1850's and 1860's, the Delawares in Kansas expected this group to rejoin the main body of the tribe there, but these Indians, called the "Absentee Delawares" in this suit, stayed with the Wichitas and Caddos.5 Their descendants have remained in Oklahoma through the present day, and are a federally recognized Indian tribe.6
4
By the 1850's, the main body of the Delaware Nation, together with a small number of Munsees, had assembled on the "permanent" reservation in Kansas at the confluence of the Kansas and Missouri Rivers. But the hope that the Kansas reservation would be the Delawares' last stopping place was short-lived. In 1866, the Delawares living on the reservation signed a treaty, under which they were to move to "Indian Country" in Oklahoma to live with the Cherokees.7 Each Delaware moving to Indian Country and enrolling on the proper register was to receive a life estate of 160 acres of Cherokee land and the right to become a member of the Cherokee Nation. Most of the Delawares on the Kansas reservation accepted these conditions and moved to Oklahoma, where they were gradually assimilated for most purposes into the Cherokee Nation, and were permitted to share equally with the Cherokees in the general funds of that tribe. See, e. g., Delaware Indians v. Cherokee Nation, 193 U.S. 127, 24 S.Ct. 342, 48 L.Ed. 646 (1904); Cherokee Nation v. Journeycake, 155 U.S. 196, 15 S.Ct. 55, 39 L.Ed. 120 (1894). Despite their association with the Cherokees, these Indians, called "Cherokee Delawares" in this suit, have over the years maintained a distinct group identity, and they are today a federally recognized tribe.8
5
The 1866 treaty did not require all Delawares on the Kansas reservation to move to Oklahoma. Rather, the treaty provided that any Delawares who agreed to "dissolve their relations with their tribe" and become citizens of the United States might elect to remain in Kansas. Such Delawares would receive 80 acres of land in Kansas in fee simple and a "just proportion" of the tribe's credits "then held in trust by the United States," but thereafter could not "further participate in their (tribal) councils, nor share in their property or annuities."9 Twenty-one adult Delawares chose to accept these conditions and remain in Kansas.10 Their descendants, called "Kansas Delawares" in this suit, are not a federally recognized tribe.11
6
In 1854, while they still lived on the Kansas reservation, the main body of the Delawares signed a treaty with the United States under which the United States was to sell certain reservation tribal "trust" lands at public auction. In 1856 and 1857, the United States breached the treaty by selling the lands privately and not at public auction. Approximately 100 years later, the Cherokee and Absentee Delawares brought separate but identical claims before the Indian Claims Commission arising out of this breach of the 1854 treaty. The Commission found that the two groups were "entitled jointly to represent the entire Delaware Tribe," Absentee Delaware Tribe of Oklahoma v. United States, 21 Ind.Cl.Comm. 344, 345 (1969), citing Delaware Tribe v. United States, 2 Ind.Cl.Comm. 253 (1952), aff'd as to parties, 128 F.Supp. 391, 130 Ct.Cl. 782 (1955), and determined that the private sales of the trust lands had realized $1,385,617.81 less than would have been realized for the tribe at public auction. The Commission awarded the tribe that sum plus interest, or a total of $9,168,171.13.12 21 Ind.Cl.Comm., at 369-370. Congress appropriated funds to pay the award and later enacted Pub.L. 92-456, providing for its distribution.13 The statute limited distribution to the Cherokee and Absentee Delawares, with amounts payable determined under a formula provided in 25 U.S.C. § 1294. Ten percent of the total sum was to be set aside for the two tribal bodies, and was to be retained by the United States to the credit of the tribes, to be used in ways approved by the Secretary of the Interior. The remaining 90% was to be divided among Cherokee Delawares whose names appeared on a "per capita payroll" described in § 1292(c)(1), and among Absentee Delawares whose names appeared on a "constructed base census roll" described in § 1292(c)(2).14
7
Appellee Weeks, on behalf of all the Kansas Delawares, instituted this action against the United States, the Cherokee Delawares, the Absentee Delawares, and the Secretary of the Interior in the District Court for the Western District of Oklahoma, alleging that the exclusion of the Kansas Delawares from the distribution of the award constituted a denial of the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment. A three-judge court was convened.15 The court declared, one judge dissenting, that Congress' failure to include the Kansas Delawares among those entitled to share in the award under Pub.L. 92-456 violated the Due Process Clause. The court also enjoined the Secretary of the Interior from distributing any of the appropriated funds pending amendment of the distribution provisions of the statute, or enactment of further legislation providing for distribution of the funds. Weeks v. United States, 406 F.Supp. 1309, 1346-1347 (1975). Each defendant separately appealed to this Court, the Secretary of the Interior in No. 75-1495, the Cherokee Delawares in No. 75-1301, and the Absentee Delawares in No. 75-1335. We noted probable jurisdiction of the three appeals, 426 U.S. 933, 96 S.Ct. 2645, 49 L.Ed.2d 385 (1976). We reverse.16
II
8
(1) Appellants differ on the issue of whether this suit presents a nonjusticiable political question because of Congress' pervasive authority, rooted in the Constitution, to control tribal property. Stated in other words, they differ on the issue of whether congressional exercise of control over tribal property is final and not subject to judicial scrutiny, since the power over distribution of tribal property has "been committed by the Constitution" to the Congress, Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962), and since "(t)he nonjusticiability of a political question is primarily a function of the separation of powers," id., at 210, 82 S.Ct. at 706. Appellants Cherokee and Absentee Delawares, citing Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903), argue that Congress' distribution plan reflects a congressional determination not subject to scrutiny by the Judicial Branch, and that the District Court therefore erred in reaching the merits of this action. Appellant Secretary of the Interior, on the other hand, submits that the plenary power of Congress in matters of Indian affairs "does not mean that all federal legislation concerning Indians is . . . immune from judicial scrutiny or that claims, such as those presented by (appellees), are not justiciable." Brief for Appellants in No. 75-1495, p. 19 n. 19. We agree with the Secretary of the Interior.
9
(2-6) The statement in Lone Wolf, supra, at 565, 23 S.Ct. at 221, that the power of Congress "has always been deemed a political one, not subject to be controlled by the judicial department of the government," however pertinent to the question then before the Court of congressional power to abrogate treaties, see generally Antoine v. Washington, 420 U.S. 194, 201-204, 95 S.Ct. 944, 949-950, 43 L.Ed.2d 129 (1975), has not deterred this Court, particularly in this day, from scrutinizing Indian legislation to determine whether it violates the equal protection component of the Fifth Amendment. See, e. g., Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). "The power of Congress over Indian affairs may be of a plenary nature; but it is not absolute." United States v. Alcea Band of Tillamooks, 329 U.S. 40, 54, 67 S.Ct. 167, 174, 91 L.Ed. 29 (1946) (plurality opinion); see also United States v. Creek Nation, 295 U.S. 103, 109-110, 55 S.Ct. 681, 683, 684, 79 L.Ed. 1709 (1935); cf. United States v. Jim, 409 U.S. 80, 82 n. 3, 93 S.Ct. 261, 262, 34 L.Ed.2d 282 (1972).
10
The question is therefore what judicial review of Pub.L. 92-456 is appropriate in light of the broad congressional power to prescribe the distribution of property of Indian tribes. The general rule emerging from our decisions ordinarily requires the judiciary to defer to congressional determination of what is the best or most efficient use for which tribal funds should be employed. Sizemore v. Brady, 235 U.S. 441, 449, 35 S.Ct. 135, 136, 59 L.Ed. 308 (1914). Thus, Congress may choose to differentiate among groups of Indians in the same tribe in making a distribution. Simmons v. Seelatsee, 384 U.S. 209, 86 S.Ct. 1459, 16 L.Ed.2d 480 (1966), aff'g 244 F.Supp. 808 (ED Wash.1965), or on the other hand to expand a class of tribal beneficiaries entitled to share in royalties from tribal lands, United States v. Jim, supra, or to devote to tribal use mineral rights under allotments that otherwise would have gone to individual allottees, Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 96 S.Ct. 1793, 48 L.Ed.2d 274 (1976). The standard of review most recently expressed is that the legislative judgment should not be disturbed "(a)s long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians . . . ." Morton v. Mancari, supra, 417 U.S. at 555, 94 S.Ct. at 2485.
III
11
We are persuaded on the record before us that Congress' omission of the appellee Kansas Delawares from the distribution under Pub.L. 92-456 was "tied rationally to the fulfillment of Congress' unique obligation toward the Indians."
12
First, the Kansas Delawares are not a recognized tribal entity, but are simply individual Indians with no vested rights in any tribal property. Public Law 92-456 distributes tribal rather than individually owned property, for the funds were appropriated to pay an award redressing the breach of a treaty with a tribal entity, the Delaware Nation. It was that tribal entity, represented jointly in the suit before the Indian Claims Commission by the appellants Cherokee Delawares and Absentee Delawares, that suffered from the United States' breach, and both the Commission award and the appropriation by Congress were the means of compensating that tribal entity for the wrong done to it. Indeed, the Indian Claims Commission is not empowered to hear individuals' claims, but may only adjudicate claims held by an "Indian tribe, band, or other identifiable group." 25 U.S.C. §§ 70a, 70i; see Minnesota Chippewa Tribe v. United States, 315 F.2d 906, 913-914, 161 Ct.Cl. 258, 270-271 (1963). As tribal property, the appropriated funds were subject to the exercise by Congress of its traditional broad authority over the management and distribution of lands and property held by recognized tribes, an authority "drawn both explicitly and implicitly from the Constitution itself." Morton v. Mancari, supra, 417 U.S. at 551-552, 94 S.Ct. at 2483. This authority of Congress to control tribal assets has been termed "one of the most fundamental expressions, if not the major expression, of the constitutional power of Congress over Indian affairs . . .." F. Cohen, Handbook of Federal Indian Law 94, 97 (1942).
13
The ancestors of the Kansas Delawares severed their relations with the tribe when they elected under the 1866 treaty to become United States citizens entitled to participate in tribal assets only to the extent of their "just proportion . . . of the cash value of the credits of said tribe . . . then held in trust by the United States." (Emphasis supplied.) We cannot say that the decision of Congress to exclude the descendants of individual Delaware Indians who ended their tribal membership and took their proportionate share of tribal property as constituted more than a century ago, and to distribute the appropriated funds only to members of or persons closely affiliated with the Cherokee and Absentee Delaware tribes, was not "tied rationally to the fulfillment of Congress' unique obligation toward the Indians."
14
Second, the exclusion of the Kansas Delawares under Pub.L. 92-456 was not their first exclusion from participation in a distribution of tribal assets. In 1904 Congress appropriated $150,000 to settle claims of the Delaware Tribe of Indians, one of them arising out of another injustice done to the Delawares under the 1854 treaty, unrelated to the breach which forms the basis for the distribution under Pub.L. 92-456.17 See United States v. Delaware Tribe of Indians, 427 F.2d 1218, 1229-1230, 192 Ct.Cl. 385, 403-405 (1970). The 1904 Act directed the Secretary of the Treasury to pay the settlement to the tribe known in this suit as the Cherokee Delawares "as said tribe shall in council direct," thereby excluding both Absentee and Kansas Delawares. 33 Stat. 189, 222. This distribution was limited to the Cherokee Delawares although it was compensation, inter alia, for a wrong to the Delawares in 1854, before the Kansas Delawares split off from the tribe. Some Kansas Delawares unsuccessfully sought to participate in the distribution but, as noted by the District Court in this case, "were denied participation on grounds similar to some of those argued in the present case." 406 F.Supp., at 1321 n. 15. The Comptroller of the Treasury concluded that "(m)anifestly (the Kansas Delawares) were not entitled to participate in the distribution of annuities or other funds due or belonging to the Delaware tribe" for:
15
"The provision in the (A)ct of April 21, 1904, supra, authorizes and directs payment to the 'Delaware tribe of Indians residing in the Cherokee Nation, as said tribe shall in council direct' . . .. The proviso immediately following the appropriation in the (A)ct emphasizes the clear indication that the appropriation was made for the tribe as distinguished from the Delaware Indians who had severed their tribal relations and become citizens of the United States." 11 Comp. Dec. 496, 500 (1905) (emphasis in original).
16
While this precedent of excluding the Kansas Delawares from the 1904 distribution does not of itself legitimate their exclusion from the present distribution statute, their earlier exclusion nevertheless indicates that Congress has historically distinguished them from the Cherokee Delawares in distributing an award based in part on a breach of the very treaty involved in this litigation.
17
Third, Congress deliberately limited the distribution under Pub.L. 92-456 to the Cherokee and Absentee Delawares because of substantial problems it apprehended might attend a wider distribution. H.R. 5200, the bill originally introduced to distribute the funds, had contained a "catchall" clause authorizing distribution "to include the names of all persons born on or prior to and living on the date of this Act who are lineal descendants of members of the Delaware Tribe as it existed in 1854 . . . ."18 This catchall would have been analogous to a clause in a 1968 statute distributing funds to compensate the Delaware Tribe for the United States' inadequate payment to them when they were moved off their Indiana lands in 1818.19 Under the 1968 catchall clause, all lineal descendants of the tribe as it existed in 1818 were permitted to share in the distribution, 25 U.S.C. § 1181(d), and about 300 Kansas Delawares were thereby allowed to participate in the distribution of the award redressing the 1818 wrong.
18
The omission of the catchall provision from Pub.L. 92-456, as finally enacted, followed legislative hearings at which the Cherokee and Absentee Delawares testified. At these hearings they directed Congress' attention to problems that had arisen when Munsee Indians, in addition to the Kansas Delawares, had claimed eligibility under the catchall provision of the 1968 statute.20 Because of a dispute over the eligibility of the Munsees to participate under the catchall clause, there had been inordinate delays in the distribution of the funds. Indeed, as late as 1972 many of the Munsees' claims were still unresolved, and distribution under the 1968 statute was virtually paralyzed. Hearings on H.R. 5200 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 92d Cong., 2d Sess., 12, 22, 59, 79, 97, 105-106, 113 (March 13, 1972) (unpublished).
19
We recognize, as did the District Court, that Congress omitted the catchall provision from the present statute in order to avoid a repetition of the problems with the Munsees, and that Congress was not "made aware that the limitation of distribution to (the Cherokee and Absentee Delawares) would exclude a group which had lived on the Kansas Delaware lands and which could trace their Delaware descendancy as the Kansas Delawares do." 406 F.Supp., at 1332.21 But we do not conclude from Congress' ignorance of the effect of the elimination of the catchall on the Kansas Delawares that the statute is therefore irrational. Congress chose to limit distribution of the award to the Cherokee and the Absentee Delawares, in whose names the Delawares' claims had been prosecuted before the Indian Claims Commission, and whom the Commission had found to represent the interests of all the Delawares. Regardless of Congress' knowledge of the effect of this limitation on the Kansas Delawares, we cannot say that the congressional choice, though predicated upon the Munsee experience under the 1968 statute, does not rationally support its decision to avoid undue delay, administrative difficulty, and potentially unmeritorious claims by distributing the award only to the Cherokee and Absentee Delawares.22
IV
20
Our conclusion that the exclusion of the Kansas Delawares from distribution under Pub.L. 92-456 does not offend the Due Process Clause of the Fifth Amendment of course does not preclude Congress from revising the distribution scheme to include the Kansas Delawares. The distribution authorized by Pub.L. 92-456 has not yet occurred, and Congress has the power to revise its original allocation. United States v. Jim, 409 U.S., at 82-83, 93 S.Ct., at 262-263.
21
Reversed.
22
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in part and concurring in the result.
23
I join Parts I and II of the Court's opinion, but otherwise I concur only in the result.
24
For me, the reversal of the District Court's judgment is not a result that is so inevitable and so easily and smoothly reached as a reading of Part III of the Court's opinion makes it appear. The Court's justifications for exclusion of the Kansas Delawares are not very persuasive. The first favoritism toward tribal Indians is undermined by the fact that Absentee Delawares who are not members of that tribe nevertheless are entitled to participate. Ante, at 82 n. 14. The second exclusion from a prior distribution is troublesome because it is difficult for me to see how perceived prior unfair treatment buttresses further unfairness. And I wonder about the statement, ante, at 87, that Congress "has historically distinguished" the Kansas Delawares from the Cherokee Delawares in distributing tribal awards, when in fact both participated in the 1968 allocation that Congress authorized for the Delawares. The third justification administrative convenience in eliminating the catchall clause may have some weight. But, as the opinion acknowledges, ante, at 88-89, there was no problem with the Kansas Delawares in the distribution of the 1968 award; the administrative difficulty was only with the Munsees.
25
Nevertheless, having said all this, I am not persuaded that the Court errs in its conclusion. For me, the case is one of that rare type in which the argument on each side is not at all strong. With the litigation in this lukewarm posture, I conclude that we must acknowledge that there necessarily is a large measure of arbitrariness in distributing an award for a century-old wrong. One could regard the distribution as a windfall for whichever beneficiaries are now favored. In light of the difficulty in determining appropriate standards for the selection of those who are to receive the benefits, I cannot say that the distribution directed by the Congress is unreasonable and constitutionally impermissible. Congress must have a large measure of flexibility in allocating Indian awards, and what it has done here is not beyond the constitutional pale.
26
Mr. Justice STEVENS, dissenting.
27
At the outset of these proceedings the Indian Claims Commission noted that in accordance with the Indian Claims Commission Act any recovery for a breach of the treaties of 1829 and 1854 "must be for the benefit of all the descendants of the Delaware Nation as constituted in 1829 and 1854," Delaware Tribe of Indians v. United States, 2 Ind.Cl.Comm. 253, 270-271 (1952).1 In due course the Commission found that the 1854 treaty had been breached in 1856 and 1857 when the United States disposed of the tribal lands in Kansas by private, not public, sale for about half their fair value. The opinion accompanying the judgment of the Commission reiterated that the named plaintiffs "were entitled jointly to represent the entire Delaware Tribe," Absentee Delaware Tribe of Oklahoma v. United States, 21 Ind.Cl.Comm. 344, 345 (1969). Thereafter, Congress appropriated the amount required by the judgment, 83 Stat. 447, 453, and adopted the distribution statute at issue here, which was intended to satisfy that judgment, 25 U.S.C. §§ 1291-1297 (1970 ed., Supp. V).
28
Appellees, the "Kansas Delawares," are members of the class represented by the plaintiffs in the Indian Claims Commission proceeding.2 There is no question about the fact that they are actual lineal descendants of members of the Delaware Tribe of 1854. Nor is there any question about the fact that their exclusion from the distribution statute is the consequence of a malfunction of the legislative process rather than a deliberate choice by Congress. At the urging of appellants Congress adopted an amendment to the bill in order to be sure that descendants of the Munsees who had not been members of the Delaware Tribe since prior to 1818 would not participate in the award. Unfortunately, the amendment had the unintended consequence of also excluding the Kansas Delawares, whose ancestors were members of the tribe in 1854 and who suffered precisely the same wrong as those whose descendants will share in the award on a per capita basis.3
29
These facts are undisputed. They make it perfectly clear that the special treatment of the Kansas Delawares does not in fact represent any rational attempt at "fulfillment of Congress' unique obligation toward the Indians . . . ." Morton v. Mancari, 417 U.S. 535, 555, 94 S.Ct. 2474, 2485, 41 L.Ed.2d 290. I think it is equally clear that each of the three hypothetical justifications for the exclusion of the Kansas Delawares advanced by the majority merely emphasizes the lack of any rational explanation for the legislative malfunction because each of the justifications would, if valid, require a different classification.
30
First, it is suggested that the Kansas Delawares were properly excluded because they terminated their membership in the tribe before the claim was reduced to judgment. But so did the Cherokees. They ceased being members of the Delaware Tribe in 1867, when they joined the Cherokee Nation.4 Moreover, some of those who would share in the distribution on behalf of the Absentee Delawares are not members of that tribe.5 Resignation from the tribe after the time of the wrong does not provide a consistent basis for treating the Kansas Delawares differently from the Cherokees or the Absentees.6
31
Second, it is pointed out that the Kansas Delawares did not participate in the $150,000 distribution appropriated by Congress in 1904 to settle a claim arising out of another breach of the 1854 treaty. But neither did the Absentee Delawares. The reason is perfectly clear. The claim involved in that settlement had been asserted pursuant to a special provision in a Cherokee allotment statute designed to resolve all claims which "the Cherokee tribe, or any band thereof, . . . may have against the United States . . . ." 32 Stat. 726. Obviously, only the Cherokee Delawares could qualify as a band of the Cherokee Tribe. That precedent does not provide any basis for treating the Kansas Delawares differently from the Absentee Delawares, or for differentiating among Delawares in a proceeding brought on behalf of all descendants of the Delaware Nation as constituted in 1829 and 1854.7
32
Third, it is said that the amendment excluding the Kansas Delawares from the award is valid because (a) it was intended to exclude the Munsees, and (b) there were valid reasons for excluding the Munsees. The Munsees were the object of special legislative concern because the processing of their claims under a 1968 distribution statute had created administrative burdens and delay. They were properly excluded because their ancestors were not members of the tribe when the wrong occurred. Neither of these reasons has any relevance to the Kansas Delawares. They are admittedly lineal descendants of victims of the wrong and they had shared in the 1968 award in such an orderly manner that Congress was not even aware of their separate status. It is thus ironic perhaps even perverse to justify the special treatment of the Kansas Delawares by including them in a class whose other members were properly excluded from the award for reasons which have no application whatsoever to the Kansas Delawares. Because the Kansas Delawares were so administratively inoffensive that they literally became invisible they will fail to share in the distribution as a result of a decision to avoid administrative difficulty.
33
The statutory exclusion of the Kansas Delawares from any share in the fund appropriated to pay a judgment in favor of a class to which they belong is manifestly unjust and arbitrary. Neither the actual explanation, nor any of the hypothetical explanations is "tied rationally to the fulfillment of Congress' unique obligation toward the Indians." But having said all this, I must confront the ultimate question whether the statute is therefore unconstitutional.
34
Improbable as the possibility seems, I am not prepared to say that if Congress had actually reviewed the status of the Kansas Delawares, it might not have found some principled basis for treating them differently from other Delawares. And it is clear that the discrimination, far from evidencing actual discriminatory intent, is the consequence of a legislative accident, perhaps caused by nothing more than the unfortunate fact that Congress is too busy to do all of its work as carefully as it should. I must also acknowledge that Congress followed accepted legislative procedures in enacting the statute. Finally, I am most reluctant to suggest that the constitutionality of legislation should turn on the actual motivation, or the lack thereof, of the legislators who participated in the legislative process. Perhaps, therefore, the Court is following a wise course in declining to intervene in an area where the greatest deference is due Congress.
35
Nevertheless, four considerations persuade me that this legislative classification is invalid. First, the members of the class whose rights were adjudicated by the Indian Claims Commission have more than an ordinary interest in equal treatment.8 Second, there is no need for any discrimination at all within this class of litigants; this, therefore, is not a case in which the need to draw some line may justify the otherwise arbitrary character of the particular line which has been drawn.9 Third, no principled justification for the particular discrimination against the Kansas Delawares has been identified. And fourth, there is no reason to believe that the discrimination is the product of an actual legislative choice.10 Under these circumstances I conclude that there has been a deprivation of property without the "due process of lawmaking" that the Fifth Amendment guarantees.11
1
Fifth Amendment equal protection claims are cognizable under the Amendment's Due Process Clause. 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). "Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment." Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976).
2
A more detailed narrative of the Delawares' history and westward migrations may be found in Delaware Tribe of Indians v. United States, 2 Ind.Cl.Comm. 253, 255-261 (1952), and in the opinion of the District Court below, Weeks v. United States, 406 F.Supp. 1309 (WD Okl.1975). See also S.Rep.No.1518, 90th Cong., 2d Sess., 7-12 (1968); C. Weslager, The Delaware Indians (1972); M. Wright, A Guide to the Indian Tribes of Oklahoma 145-155 (1977).
3
Treaty of 1818, 7 Stat. 188.
4
Treaty of 1829, 7 Stat. 327.
5
Article IV of the Treaty of 1860 between the United States and the main body of the Delawares, 12 Stat. 1330, provided:
"Whereas some years ago a good many of the Delawares went down among the Southern Indians, and as there are still about two hundred of them there, and as they have reason to believe they will return soon, it is hereby agreed that eighty acres each be set apart for them, to be allotted to them as they return . . . ."
6
The formal name of the Absentee Delawares is the Absentee Delaware Tribe of Western Oklahoma. Appellees concede that the Absentee Delawares are a federally recognized tribe. Jurisdictional Statement in No. 75-1328, p. 20.
7
Treaty of 1866, 14 Stat. 793.
8
The formal name of the Cherokee Delawares is the Delaware Tribe of Indians. Appellees contend that the Cherokee Delawares were not a federally recognized tribe until after the commencement of this lawsuit. Tr. of Oral Arg. 58-59. The District Court made no finding as to the Cherokee Delawares' status as a recognized tribe, but it is clear that Congress, prior to the enactment of the statute, dealt with the Cherokee Delawares as a distinct entity. See, e. g., Act of 1904, § 21, 33 Stat. 222, providing for payments to "the Delaware tribe of Indians residing in the Cherokee Nation, as said tribe shall in council direct . . ."; 43 Stat. 812; 44 Stat. 1358; and 49 Stat. 1459, amending 43 Stat. 812.
9
14 Stat. 793, Arts. III, IX.
10
These 21 adults had 49 children who, under the terms of the 1866 treaty, were permitted to elect for themselves upon attaining majority whether to join the Delawares who had moved to the Cherokee Nation. Under an 1874 treaty, however, the minor children were all granted citizenship in the United States, and were granted land on the same terms as their parents. 18 Stat. 146, 175. The District Court found that the 1874 treaty eliminated the necessity for an election by the children. 406 F.Supp., at 1320.
11
Appellees stated at oral argument in this Court that a Kansas Delaware, Mr. Joe Bartles, was prominently involved in prosecuting the Delawares' claims before the Indian Claims Commission, that two Kansas Delawares had served as members of the (Cherokee) Delaware Tribal Business Committee, and that the Business Committee in 1952 adopted a resolution recognizing a number of Kansas Delawares as entitled to share in Delaware lands. Tr. of Oral Arg. 59-61. There were apparently no Kansas Delawares on the Business Committee during Congress' deliberations on the statute to distribute the award to redress the breach of the 1854 treaty.
12
It is not disputed that the credits "then held in trust by the United States" which were distributed proportionately to the Kansas Delawares under the 1866 treaty included the amount received by the United States when it sold the trust lands privately rather than at public auction. We may assume that compliance by the United States with its promise to sell the lands at public auction would have meant that the sum paid to each Kansas Delaware who bought out of the tribe would have been larger.
13
Pub.L. 92-456, 86 Stat. 762, is codified in 25 U.S.C. §§ 1291-1297 (1970 ed., Supp. V) as follows:
§ 1291:
"The funds appropriated by the Act of December 26, 1969 (83 Stat. 447, 453), to pay a judgment in favor of the petitioners, the Delaware Tribe of Indians in docket 298, and the Absentee Delaware Tribe of Western Oklahoma, and others, in docket 72, together with any interest thereon, after payment of attorney fees, litigation expenses, and such
expenses as may be necessary in effecting the provisions of sections 1291 to 1297 of this title, shall be distributed as provided in such sections."
§ 1292:
"The Secretary of the Interior shall prepare a roll of all persons who meet the following requirements:
"(a) they were born on or prior to and were living on October 3, 1972; and
"(b) they are citizens of the United States; and
"(c)(1) their name or the name of a lineal ancestor appears on the Delaware Indian per capita payroll approved by the Secretary on April 20, 1906, or
"(2) their name or the name of a lineal ancestor is on or is eligible to be on the constructed base census roll as of 1940 of the Absentee Delaware Tribe of Western Oklahoma, approved by the Secretary."
§ 1293:
"All applications for enrollment must be filed either with the Area Director of the Bureau of Indian Affairs, Muskogee, Oklahoma, or with the Area Director of the Bureau of Indian Affairs, Anadarko, Oklahoma, on or before the last day of the fourth full month following October 3, 1972, and no application shall be accepted thereafter. The Secretary of the Interior shall give a rejection notice within sixty days after receipt of an application if the applicant is ineligible for enrollment. An appeal from a rejected application must be filed with the Area Director not later than thirty days from receipt of the notice of rejection. The Secretary shall make a final determination on each appeal not later than sixty days from the date it is filed. Each application and each appeal filed with the Area Director shall be reviewed by a committee composed of representatives of the two Oklahoma Delaware groups prior to submission of the application or appeal to the Secretary, and the committee shall advise the Area Director in writing of its judgment regarding the eligibility of the applicant."
§ 1294:
"(a) The Secretary of the Interior shall apportion to the Absentee Delaware Tribe of Western Oklahoma, as presently constituted, so much of the judgment fund and accrued interest as the ratio of the persons enrolled pursuant to section 1292(c)(2) of this title bears to the total number of persons enrolled pursuant to section 1292 of this title. The
funds so apportioned to the Absentee Delaware Tribe of Western Oklahoma shall be placed to the credit of the tribe in the United States Treasury and shall be used in the following manner: 90 per centum of such funds shall be distributed in equal shares to each person enrolled pursuant to section 1292(c)(2) of this title, and 10 per centum shall remain to the credit of the tribe in the United States Treasury, and may be advanced, expended, invested, or reinvested for any purpose that is authorized by the tribal governing body and approved by the Secretary of the Interior.
"(b) The funds not apportioned to the Absentee Delaware Tribe of Western Oklahoma shall be placed to the credit of the Delaware Tribe of Indians in the United States Treasury and shall be used in the following manner: 90 per centum of such funds shall be distributed in equal shares to each person enrolled pursuant to section 1292(c)(1) of this title, and 10 per centum shall remain to the credit of the tribe in the United States Treasury and may be advanced, expended, invested, or reinvested for any purpose that is authorized by the tribal governing body: Provided, That the Secretary of the Interior shall not approve the use of the funds remaining to the credit of the tribe until the tribe has organized a legal entity which in the judgment of the Secretary adequately protects the interests of its members."
§ 1295:
"Sums payable to living enrollees age eighteen or older or to heirs or legatees of deceased enrollees age eighteen or older shall be paid directly to such persons. Sums payable to enrollees or their heirs or legatees who are under age eighteen or who are under legal disability other than minority shall be paid in accordance with such procedures, including the establishment of trusts, as the Secretary of the Interior determines appropriate to protect the best interest of such persons."
§ 1296:
"None of the funds distributed per capita under the provisions of sections 1291 to 1297 of this title shall be subject to Federal or State income taxes."
§ 1297:
"The Secretary of the Interior is authorized to prescribe rules and regulations to carry out the provisions of sections 1291 to 1297 of this title."
14
So defined, Cherokee Delawares eligible to share in the distribution must necessarily be members of the tribal entity as presently constituted. Absentee Delawares eligible to share in the award, on the other hand, are defined somewhat more broadly, so that some nonmembers of the tribe are eligible under the statute.
15
A similar action in the District Court for the Northern District of Oklahoma was consolidated with appellee Weeks' suit in the District Court below, and the appeals to this Court are from the decision in the consolidated cases.
16
The United States, also joined as a party defendant, was dismissed from the suit on the ground that it had not consented to the action. No appeal was taken to this Court from that dismissal.
Appellees also filed an appeal from the District Court judgment which is pending as Weeks v. Andrus, No. 75-1328. Their complaint asserted that 25 U.S.C. §§ 1181-1186 (relating to the 1818 treaty) and §§ 1291-1297 (1970 ed., Supp. V) (relating to the 1854 treaty) violated the Fifth Amendment's Due Process and Just Compensation Clauses; §§ 1181-1186, because the Cherokee Delaware class was wrongfully included in the proposed distribution under that statute; and §§ 1291-1297, because the Kansas Delaware class was wrongfully excluded and the Cherokee and Absentee Delaware classes wrongfully included in that statute's distribution. The District Court held that neither statute was unconstitutional by reason of the inclusion of the Cherokee Delaware and the Absentee Delaware classes. It is from this aspect of the District Court's decision that the appeal in No. 75-1328 is taken. In light of today's decision, the judgment of the District Court in that respect is affirmed.
17
The claims had been brought by the Cherokee Delawares under a 1902 Act, 32 Stat. 716, 726, which, inter alia, gave jurisdiction to the Court of Claims to hear claims brought by the "Cherokee tribe, or any band thereof . . . against the United States."
18
H.R. 5200, 92d Cong., 1st Sess., 2 (1971); S. 1067, 92d Cong., 1st Sess., 2 (1971).
19
82 Stat. 861, 25 U.S.C. §§ 1181-1186. The constitutionality of this statute was also challenged by appellees in the District Court. See n. 16, supra.
20
Hearings on H.R. 5200 before the Subcommittee on Indian Affairs of the Committee on Interior and Insular Affairs, 92d Cong., 2d Sess. (March 13, 1972) (unpublished); Hearings on H.R. 5200, H.R. 14267 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 92d Cong., 2d Sess. (May 8, 1972) (unpublished); Hearings on H.R. 14267, H.R. 5200 before the House Committee on Interior and Insular Affairs, 92d Cong., 2d Sess. (May 10, 1972) (unpublished); Hearings on S. 3113, S. 1067, S. 2249 and S. 2298 before the Subcommittee on Indian Affairs of the Senate Committee of Interior and Insular Affairs, 92d Cong., 2d Sess., 60 et seq. (July 21, 1972) (unpublished).
21
It seems apparent from the Senate and House Reports accompanying the bill that was eventually enacted that Congress was not made aware of the Kansas Delawares' existence, for the Reports state that the beneficiaries of the distribution will be the "(l)iving descendants of members of the Delaware Tribe as it existed in 1854." S.Rep.No. 92-1126, p. 6 (1972); H.R.Rep. No. 92-1081, p. 6 (1972).
22
The congressional decision to distribute funds only to individuals who were members of, or clearly identified with, specific tribes has precedent in other similar statutes. See, e. g., 25 U.S.C. §§ 565-565g (Klamath); 25 U.S.C. §§ 581-590c (1970 ed., Supp. V) (Shoshone and Shoshone-Bannock); 25 U.S.C. §§ 1071-1073 (1970 ed. and Supp. V) (Confederated Colville); 25 U.S.C. §§ 1161-1167 (1970 ed. and Supp. V) (Cheyenne-Arapaho); 25 U.S.C. §§ 1191-1195 (Confederated Umatilla); 25 U.S.C. §§ 1261-1265 (1970 ed., Supp. V) (Blackfeet and Gros Ventre); 25 U.S.C. §§ 1300b-1300b-5 (1970 ed., Supp. V) (Kickapoo); 25 U.S.C. §§ 1300c-1300c-5 (1970 ed., Supp. V) (Yankton Sioux); 25 U.S.C. §§ 1300e-1300e-7 (1970 ed., Supp. V) (Assiniboine).
1
Aff'd as to parties, 128 F.Supp. 391, 130 Ct.Cl. 782 (1955). The Commission relied on a contemporaneous holding of the Court of Claims to the same effect, McGhee v. Creek Nation, 122 Ct.Cl. 380, 388, 392, 396 (1952), cert. denied, 344 U.S. 856, 73 S.Ct. 91, 97 L.Ed. 665. That court, charged by statute with interpreting the Indian Claims Commission Act and reviewing the actions of the Commission, 25 U.S.C. § 70s, continues to adhere to this view: "(T)he ancestral group 'owns' the claim, and present-day Indian groups are before the Commission only on behalf of the ancestral entity." Turtle Mountain Band of Chippewa Indians v. United States, 490 F.2d 935, 954, 203 Ct.Cl. 426, 458 (1974).
2
Indeed, a Kansas Delaware was chairman of the plaintiffs' business committee when the suit was filed in the Indian Claims Commission in 1951. Brief for Appellees 22.
3
The words "Kansas Delaware" do not appear in the legislative history of 25 U.S.C. §§ 1291-1297. (1970 ed., Supp. V). The court below noted: "There is evidence in our record that at least some of the Cherokee and Absentee Delawares, themselves, were unaware of the existence of the Kansas Delawares at the time they testified before Congress. Mr. Townsend, the chairman of the Delaware Tribal Business Committee (Cherokee Delaware) and one of the principal witnesses before Congress urging the adoption of a distribution scheme utilizing only the 1906 and 1940 rolls, testified in the course of this litigation that he was unaware of the existence of the Kansas Delawares . . . ." Weeks v. United States, 406 F.Supp. 1309, 1331 n. 29 (WD Okl.1975).
The District Court conducted an extensive review of the legislative history, id., at 1330-1332, 1347-1351, and concluded:
"(T)he Congress was specifically requested by the Absentee Delawares and the Cherokee Delawares to delete the catchall provision (under which respondents would have claimed), and that Congress made the decision in response to the urging of those groups. On the record before us, we find that neither Congress nor its committees were made aware that the limitation . . . would exclude a group which had lived on the Kansas Delaware lands and which could trace their Delaware descendancy as the Kansas Delawares do. Instead the focus was on the Munsee Indian groups, including the Christian Indians, and paramount consideration was given to the Munsee situation in considering the proposed change in the distribution statute.
". . . It is disturbing that the Congress was apparently not aware of the Kansas Delaware group and we are persuaded that it was not the intent of Congress to exclude a group such as the Kansas Delawares from the distribution." Id., at 1332.
In view of these undisputed findings it is also disturbing that the majority refers to a congressional "decision" to exclude the Kansas Delawares, ante, at 86.
4
Articles of Agreement between the Cherokee Nation and the Delaware Tribe, Apr. 8, 1867, quoted in the Statement of the Case in Cherokee Nation v. Journeycake, 155 U.S. 196, 199-202, 15 S.Ct. 55, 57-58, 39 L.Ed. 120. The agreement states, in part:
" 'On the fulfilment by the Delawares of the foregoing stipulations, all the members of the tribe registered as above provided shall become members of the Cherokee Nation, with the same rights and immunities, and the same participation (and no other) in the national funds, as native Cherokees, save as hereinbefore provided.
" 'And the children hereafter born of such Delawares so incorporated into the Cherokee Nation shall in all respects be regarded as native Cherokees.' " Id., at 202, 15 S.Ct., at 58.
Aspects of the status of the Cherokee Delawares were adjudicated in Journeycake and in Delaware Indians v. Cherokee Nation, 193 U.S. 127, 24 S.Ct. 342, 48 L.Ed. 646. To be sure the Cherokee Delawares have recently reconstituted themselves as a recognized Indian tribe. This did not occur, however, until 1974, two years after Congress acted on the legislation in question.
5
A person must have at least one-eighth Delaware blood in order to be recognized as a member of the Absentee Delaware Tribe. No such limitation exists as to the Absentee section of the distribution statute, 25 U.S.C. § 1292(c)(2) (1970 ed., Supp. V). Weeks v. United States, 406 F.Supp. 1309, 1339 n. 40.
6
It would be manifestly unjust to read the treaty of 1866, which led to the resignation of the Kansas Delawares, as providing an affirmative justification for depriving their descendants of their rightful share of the recovery based on the proceeds that should have been obtained from the sale of the tribal lands in 1856 and 1857. The 1866 treaty expressly provided that upon becoming a citizen of the United States each member was "entitled to receive a patent in fee simple, with power of alienation, for the land heretofore allotted to him, and his just proportion, in cash or in bonds, of the cash value of the credits of said tribe, principal and interest, then held in trust by the United States . . . ." 14 Stat. 796.
The 1866 treaty was plainly intended to give the Kansas Delawares their proportionate interest in the proceeds of the sales made pursuant to the 1854 treaty. It is true that those proceeds were only about half as large as they would have been if the United States had fulfilled its treaty obligation, and I recognize that the unknown claim for the balance of the fair value of the tribal land was not technically "then held in trust by the United States." But surely it was the intention of the parties to the 1866 treaty to give the Kansas Delawares their fair share of the credits which should have been on the books as a result of the sale of tribal property as well as their share of the actual credits. See the discussion below, 406 F.Supp., at 1337 n. 39, and accompanying text.
7
The more relevant precedent is the 1968 statute distributing the proceeds of the award based on the breach of the 1818 Treaty, ante, at 88. All Delawares, including the Kansas Delawares, who traced their ancestry to membership in the tribe in 1818, participated in that award. That award, like this one, but unlike the 1904 appropriation, was in satisfaction of an Indian Claims Commission judgment. Thus the more recent and more relevant congressional precedent supports inclusion of the Kansas Delawares, not exclusion.
8
The fact that the legislative action under review is the culmination of a quasi-judicial proceeding brought on behalf of the entire class distinguishes this legislation from policy decisions of general applicability. Cf. Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 680, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976) (Stevens, J., dissenting). Moreover, " 'Congress' unique obligation toward the Indians,' " ante, at 85, surely includes a special responsibility to deal fairly with similarly situated Indians.
9
Cf. Mathews v. Diaz, 426 U.S. 67, 82-84, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478; Louisville Gas Co. v. Coleman, 277 U.S. 32, 41, 48 S.Ct. 423, 426, 72 L.Ed. 770 (Holmes, J., dissenting).
10
See Mathews v. Lucas, 427 U.S. 495, 516, 96 S.Ct. 2755, 2767, 49 L.Ed.2d 651; Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n. 16, 95 S.Ct. 1225, 1233, 43 L.Ed.2d 514; Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1372, 4 L.Ed.2d 1435; cf. McDonald v. Board of Election Comm'rs, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739; Baker v. Carr, 369 U.S. 186, 226, 82 S.Ct. 691, 714, 7 L.Ed.2d 663; Royster Guano Co. v. Virginia, 253 U.S. 412, 415-416, 40 S.Ct. 560, 561-562, 64 L.Ed. 989.
11
Although I am indebted to Professor Linde for the phrase, I cannot fairly claim that my conclusion is compelled by the analysis in his illuminating article, Due Process of Lawmaking, 55 Neb.L.Rev. 197 (1976).
| 12
|
430 U.S. 188
97 S.Ct. 990
51 L.Ed.2d 260
Stanley MARKS et al., Petitionersv.UNITED STATES.
No. 75-708.
Argued Nov. 1-2, 1976.
Decided March 1, 1977.
Syllabus
Petitioners were convicted of transporting obscene materials in violation of a federal statute. The conduct that gave rise to the charge occurred before Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, was decided, announcing new standards for 'isolat(ing) 'hard core' pornography from expression protected by the First Amendment,' id., at 29, 93 S.Ct., at 2617. Held: The Due Process Clause of the Fifth Amendment precludes retroactive application to petitioners of the Miller standards, to the extent that those standards may impose criminal liability for conduct not punishable under the standards announced in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894. Specifically, petitioners are entitled to jury instructions requiring the jury to acquit unless it finds that the materials involved are 'utterly without redeeming social value.' At the same time, any constitutional principle announced in Miller that would serve to benefit petitioners must be applied in their case. Hamling v. United States, 418 U.S. 87, 102, 94 S.Ct. 2887, 2899, 41 L.Ed.2d 590. Pp. 189-197.
520 F.2d 913, reversed and remanded.
Solicitor Gen. Robert H. Bork, Washington, D. C., for respondent.
Robert Eugene Smith, Atlanta, Ga., for petitioners.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents the question, not fully answered in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), whether the standards announced in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), are to be applied retroactively to the potential detriment of a defendant in a criminal case. We granted certiorari, 424 U.S. 942, 96 S.Ct. 1408, 47 L.Ed.2d 347 (1976), to resolve a conflict in the Circuits.1
2
* Petitioners were charged with several counts of transporting obscene materials in interstate commerce, in violation of 18 U.S.C. § 1465, and with conspiracy to transport such materials, 18 U.S.C. § 371. The conduct that gave rise to the charges covered a period through February 27, 1973. Trial did not begin until the following October. In the interim, on June 21, 1973, this Court decided Miller v. California, supra, and its companion cases.2 Miller announced new standards for 'isolat(ing) 'hard core' pornography from expression protected by the First Amendment.' 413 U.S., at 29, 93 St.Ct. at 2617.3 That these new standards would also guide the future interpretation of the federal obscenity laws was clear from United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 129-130, and n. 7, 93 S.Ct. 2665, 2669, 2670, 37 L.Ed.2d 500 (1973), decided the same day as Miller. See Hamling v. United States, supra, 418 U.S., at 105, 113-114, 94 S.Ct., at 2901, 2905-2906.
3
Petitioners argued in the District Court that they were entitled to jury instructions not under Miller, but under the more favorable formulation of Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) (plurality opinion).4 Memoirs, in their view, authoritatively stated the law in effect prior to Miller, by which petitioners charted their course of conduct. They focused in particular on the third part of the Memoirs test. Under it, expressive material is constitutionally protected unless it is 'utterly without redeeming social value.' 383 U.S., at 418, 86 S.Ct., at 977. Under Miller the comparable test is '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. Miller, petitioners argue, casts a significantly wider net than Memoirs. To apply Miller retroactively, and thereby punish conduct innocent under Memoirs, violates the Due Process Clause of the Fifth Amendment much as retroactive application of a new statute to penalize conduct innocent when performed would violate the Constitution's ban on ex post facto laws, Art. I, § 9, cl. 3; § 10, cl. 1. The District Court overruled these objections and instructed the jury under the Miller standards. Petitioners were convicted,5 and a divided Court of Appeals for the Sixth Circuit affirmed.6 520 F.2d 913 (1975). We now reverse.
II
4
The Ex Post Facto Clause is a limitation upon the powers of the Legislature, see Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798), and does not of its own force apply to the Judicial Branch of government. Frank v. Mangum, 237 U.S. 309, 344, 35 S.Ct. 582, 593, 59 L.Ed. 969 (1915). But the principle on which the Clause is based the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties is fundamental to our concept of constitutional liberty. See United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment. In Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), a case involving the cognate provision of the Fourteenth Amendment, the Court reversed trespass convictions, finding that they rested on an unexpected construction of the state trespass statute by the State Supreme Court:
5
'(A)n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. . . . If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.' Id., at 353-354, 84 S.Ct., at 1703.
6
Similarly, in Rabe v. Washington, 405 U.S. 313, 93 S.Ct. 993, 31 L.Ed.2d 258 (1972), we reversed a conviction under a state obscenity law because it rested on an unforeseeable judicial construction of the statute. We stressed that reversal was mandated because affected citizens lacked fair notice that the statute would be thus applied.
7
Relying on Bouie, petitioners assert that Miller and its companion cases unforeseeably expanded the reach of the federal obscenity statutes beyond what was punishable under Memoirs. The Court of Appeals rejected this argument. It noted correctly that the Memoirs standards never commanded the assent of more than three Justices at any one time, and it apparently concluded from this fact that Memoirs never became the law. By this line of reasoning, one must judge whether Miller expanded criminal liability by looking not to Memoirs but to Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the last comparable plenary decision of this Court prior to Miller in which a majority united in a single opinion announcing the rationale behind the Court's holding.7 Although certain language in Roth formed the basis for the plurality's formulation in Memoirs, Roth's test for distinguishing obscenity from protected speech was a fairly simple one to articulate: 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' 354 U.S., at 489, 77 S.Ct., at 1311. If indeed Roth, not Memoirs, stated the applicable law prior to Miller, there would be much to commend the apparent view of the Court of Appeals that Miller did not significantly change the law.
8
But we think the basic premise for this line of reasoning is faulty. When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . ..' Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 2923, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Three Justices joined in the controlling opinion in Memoirs. Two others, Mr. Justice Black and Mr. Justice Douglas, concurred on broader grounds in reversing the judgment below. 383 U.S., at 421, 424, 86 S.Ct., at 978, 980. They reiterated their well-known position that the First Amendment provides an absolute shield against governmental action aimed at suppressing obscenity. Mr. Justice Stewart also concurred in the judgment, based on his view that only 'hardcore pornography' may be suppressed. Id., at 421, 86 S.Ct., at 978. See Ginzburg v. United States, 383 U.S. 463, 499, 86 S.Ct. 942, 956, 16 L.Ed.2d 31 (1966) (Stewart, J., dissenting). The view of the Memoirs plurality therefore constituted the holding of the Court and provided the governing standards. Indeed, every Court of Appeals that considered the question between Memoirs and Miller so read our decisions.8 Materials were deemed to be constitutionally protected unless the prosecution carried the burden of proving that they were 'utterly without redeeming social value,' and otherwise satisfied the stringent Memoirs requirements.
9
Memoirs therefore was the law. Miller did not simply clarify Roth; it marked a significant departure from Memoirs. And there can be little doubt that the third test announced in Miller whether the work 'lacks serious literary, artistic, political, or scientific value' expanded criminal liability. The Court in Miller expressly observed that the 'utterly without redeeming social value' test places on the prosecutor 'a burden virtually impossible to discharge under our criminal standards of proof.' 413 U.S., at 22, 93 S.Ct., at 2613. Clearly it was thought that some conduct which would have gone unpunished under Memoirs would result in conviction under Miller.
10
This case is not strictly analogous to Bouie. The statutory language there was 'narrow and precise,' 378 U.S., at 352, 84 S.Ct., at 1701, and that fact was important to our holding that the expansive construction adopted by the State Supreme Court deprived the accused of fair warning. In contrast, the statute involved here always has used sweeping language to describe that which is forbidden.9 But precisely because the statute is sweeping, its reach necessarily has been confined within the constitutional limits announced by this Court. Memoirs severely restricted its application. Miller also restricts its application beyond what the language might indicate, but Miller undeniably relaxes the Memoirs restrictions.10 The effect is the same as the new construction in Bouie. Petitioners, engaged in the dicey business of marketing films subject to possible challenge, had no fair warning that their products might be subjected to the new standards.11
11
We have taken special care to insist on fair warning when a statute regulates expression and implicates First Amendment values. See, e. g., Buckley v. Valeo, 424 U.S. 1, 40-41, 96 S.Ct. 612, 645, 46 L.Ed.2d 659 (1976); Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974). Section 1465 is such a statute. We therefore hold, in accordance with Bouie, that the Due Process Clause precludes the application to petitioners of the standards announced in Miller v. California, to the extent that those standards may impose criminal liability for conduct not punishable under Memoirs. Specifically, since the petitioners were indicted for conduct occurring prior to our decision in Miller, they are entitled to jury instructions requiring the jury to acquit unless it finds that the materials involved are 'utterly without redeeming social value.'12 At the same time we reaffirm our holding in Hamling v. United States, 418 U.S., at 102, 94 S.Ct., at 2900, that 'any constitutional principle enunciated in Miller which would serve to benefit petitioners must be applied in their case.'13
12
Accordingly, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.14
13
So ordered.
14
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, concurring in part and dissenting in part.
15
I join the opinion of the Court insofar as it holds that the retroactive application of the definition of obscenity announced in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), to the potential detriment of a criminal defendant, violates the Due Process Clause of the Fifth Amendment. See Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).
16
I cannot join, however, in the judgment remanding the case for a new trial. Petitioners were convicted of transporting obscene materials in interstate commerce in violation of 18 U.S.C. § 1465. I adhere to the view that this statute is "clearly overbroad and unconstitutional on its face." See, e. g., Cangiano v. United States, 418 U.S. 934, 935, 94 S.Ct. 3223, 41 L.Ed.2d 1171 (1974) (Brennan, J., dissenting), quoting United States v. Orito, 413 U.S. 139, 148, 93 S.Ct. 2674, 2680, 37 L.Ed.2d 513 (1973) (Brennan, J., dissenting). I therefore would simply reverse.
17
Mr. Justice STEVENS, concurring in part and dissenting in part.
18
There are three reasons which, in combination, persuade me that this criminal prosecution is constitutionally impermissible. First, as the Court's opinion recognizes, this 'statute regulates expression and implicates First Amendment values.' Ante, at 196. However distasteful these materials are to some of us, they are nevertheless a form of communication and entertainment acceptable to a substantial segment of society; otherwise, they would have no value in the marketplace. Second, the statute is predicated on the somewhat illogical premise that a person may be prosecuted criminally for providing another with material he has a constitutional right to possess. See Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542. Third, the present constitutional standards, both substantive and procedural,* which apply to these prosecutions are so intolerably vague that evenhanded enforcement of the law is a virtual impossibility. Indeed, my brief experience on the Court has persuaded me that grossly disparate treatment of similar offenders is a characteristic of the criminal enforcement of obscenity law. Accordingly, while I agree with everything said in the Court's opinion, I am unable to join its judgment remanding the case for a new trial.
1
Two Courts of Appeals have found instructions derived from Miller appropriate in prosecutions based on conduct occurring before the Miller decision came down: United States v. Marks, 520 F.2d 913 (C.A.6 1975) (the instant case); and United States v. Friedman, 528 F.2d 784 (C.A.10 1976), cert. pending, No. 75-1663. Three Courts of Appeals have reversed convictions where Miller instructions were given by the District Court: United States v. Wasserman, 504 F.2d 1012 (C.A.5 1974); United States v. Jacobs, 513 F.2d 564 (C.A.9 1974); United States v. Sherpix, Inc., 168 U.S.App.D.C. 121, 512 F.2d 1361 (1975).
In two earlier cases both conduct and trial occurred prior to Miller, and the jury instructions were derived from Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) (plurality opinion). United States v. Thevis, 484 F.2d 1149 (C.A.5 1973) (Thevis I), cert. denied, 418 U.S. 932, 94 S.Ct. 3222, 41 L.Ed.2d 1170 (1974); United States v. Palladino, 490 F.2d 499 (C.A.1 1974). The Courts of Appeals there, foreshadowing to some extent our later decision in Hamling v. United States, held that Miller did not void all Memoirs-based convictions, but that on review appellants were entitled to all the benefits of both the Miller and Memoirs standards. See Hamling, 418 U.S., at 102, 94 S.Ct., at 2899. In later cases presenting similar facts, the Fifth Circuit has applied its holding in Thevis i. See, e. g., United States v. Linetsky, 533 F.2d 192 (C.A.5 1976); United States v. Thevis, 526 F.2d 989 (1976) (Thevis ii), cert. denied, 429 U.S. 928, 97 S.Ct. 335, 50 L.Ed.2d 299 (1976). See also United States v. Hill, 500 F.2d 733 (C.A.5 1974), cert. denied, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975). And the Ninth Circuit, following Hamling has reached the same result, United States v. Cutting, 538 F.2d 835 (1976) (en banc), cert. denied, 429 U.S. 1052, 97 S.Ct. 766, 50 L.Ed.2d 769 (1977).
2
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).
3
Miller held:
'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. Under part (b) of the test, it is adequate if the statute, as written or as judicially construed, specifically defines the sexual conduct, depiction of which is forbidden. The Court in Miller offered examples of what a State might constitutionally choose to regulate:
'(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
'(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.' Id., at 25, 93 S.Ct., at 2615.
4
The plurality in Memoirs held that 'three elements must coalesce' if material is to be found obscene and therefore outside the protection of the First Amendment:
'(I)t 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.' 383 U.S., at 418, 86 S.Ct., at 977.
5
Petitioner American News Co., Inc., was convicted only on the conspiracy charge. The other four petitioners were convicted of conspiracy and also on seven of the eight substantive counts.
6
Both in its brief and at oral argument in this Court the United States contended that petitioners' convictions under the Miller standards were improper, and consequently the Government does not defend the judgment of the Court of Appeals on this issue but agrees with petitioners that their convictions should not stand.
7
Shortly after Memoirs, in response to the divergence of opinion among Members of the Court, the Court began the practice of disposing of obscenity cases in brief per curiam decisions. Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), was the first. At least 31 cases were decided in this fashion. They are collected in Paris Adult Theatre I v. Slaton, 413 U.S., at 82-83, n. 8, 93 S.Ct., at 2646-2647 (Brennan, J., dissenting).
8
See, e. g., Books, Inc. v. United States, 358 F.2d 935 (C.A.1 1966), rev'd per curiam, 388 U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311 (1967); United States v. 35 Mm. Motion Picture Film, 432 F.2d 705 (C.A.2 1970), cert. dismissed sub nom. United States v. Unicorn Enterprises, Inc., 403 U.S. 925, 91 S.Ct. 2241, 29 L.Ed.2d 704 (1971); United States v. Ten Erotic Paintings, 432 F.2d 420 (C.A.4 1970); United States v. Groner, 479 F.2d 577 (C.A.5) (en banc) (the seven dissenting judges and one judge concurring in the result constituting a majority on this issue found that Memoirs stated the governing standard), vacated and remanded for further consideration in light of Miller, 414 U.S. 969, 94 S.Ct. 278, 38 L.Ed.2d 213 (1973); United States v. Pellegrino, 467 F.2d 41 (C.A.9 1972); Southeastern Promotions, Ltd. v. Oklahoma City, 459 F.2d 282 (C.A.10 1972); Huffman v. United States, 152 U.S.App.D.C. 238, 470 F.2d 386 (1971), conviction reversed on other grounds upon rehearing after Miller, 163 U.S.App.D.C. 417, 502 F.2d 419 (1974). Cf. Grove Press, Inc. v. City of Philadelphia, 418 F.2d 82 (C.A.3 1969); Cinecom Theaters Midwest States, Inc. v. City of Fort Wayne, 473 F.2d 1297 (C.A.7 1973); Luros v. United States, 389 F.2d 200 (C.A.8 1968).
9
The statute provides in pertinent part:
'Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producting sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both.' 18 U.S.C. § 1465.
10
For this reason, the instant case is different from Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975), where the broad reading of the statute at issue did not upset a previously established narrower construction.
11
In Hamling we rejected a challenge based on Bouie v. City of Columbia, ostensibly similar to the challenge that is sustained here. 418 U.S., at 115-116, 94 S.Ct., at 2906-2907. But the similarity is superficial only. There the petitioners focused on part (b) of the Miller test. See n. 3, supra. They argued that their convictions could not stand because Miller requires that the categories of material punishable under the statute must be specifically enumerated in the statute or in authoritative judicial construction. No such limiting construction had been announced at the time they engaged in the conduct that led to their convictions. We held that this made out no claim under Bouie, for part (b) did not expand the reach of the statute. '(T)he 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 though criminal.' 418 U.S., at 116, 94 S.Ct., at 2907.
For the reasons noted in text, the same cannot be said of part (c) of the Miller test, shifting from 'utterly without redeeming social value' to 'lacks serious literary, artistic, political, or scientific value.' This was implicitly recognized by the Court in Hamling itself. There the trial took place before Miller, and the jury had been instructed in accordance with Memoirs. Its verdict necessarily meant that it found the materials to be utterly without redeeming social value. This Court examined the record and determined that the jury's verdict 'was supported by the evidence and consistent with the Memoirs formulation of obscenity.' 418 U.S., at 100, 94 S.Ct., at 2899. We did not avoid that inquiry on the ground that Memoirs had no relevance, as we might have done if Miller applied retroactively in all respects.
12
The Court of Appeals stated, apparently without viewing the materials, 520 F.2d, at 923 n. 1 (McCree, J., dissenting), that in its opinion the materials here were obscene under either Memoirs or Miller. 520 F.2d, at 922. Such a conclusion, absent other dependable means of knowing the character of the materials, is of dubious value. But even if we accept the court's conclusion, under these circumstances it is not an adequate substitute for the decision in the first instance of a properly instructed jury, as to this important element of the offense under 18 U.S.C. § 1465.
13
The Court of Appeals apparently thought that our remand in Miller and the companion cases necessarily meant that Miller standards were fully retroactive. 520 F.2d, at 920. But the passage from Hamling quoted in the text, which simply reaffirms a principle implicit in Miller, makes it clear that the remands carried no such implication. Our 1973 cases were remanded for the courts below to apply the 'benefits' of Miller. See n. 3, supra.
14
In view of our disposition of the case, we have no occasion to reach the other questions presented in the petition.
*
How, for example, can an appellate court intelligently determine whether a jury has properly identified the relevant community standards?
| 23
|
430 U.S. 144
97 S.Ct. 996
51 L.Ed.2d 229
UNITED JEWISH ORGANIZATIONS OF WILLIAMSBURGH, INC., et al., Petitioners,v.Hugh L. CAREY et al.
No. 75-104.
Argued Oct. 6, 1976.
Decided March 1, 1977.
Syllabus
After New York State had submitted for the approval of the Attorney General its 1972 reapportionment statute with respect to Kings County and two other counties which were subject to §§ 4 and 5 of the Voting Rights Act of 1965, he concluded that as to certain districts in Kings County the State had not met its burden under § 5 of demonstrating that the redistricting had abridging the right to vote by reason of race or color. In May 1974 the State submitted to the Attorney General a revision of those portions of the 1972 plan to which he had objected, including provisions for elections to the state senate and assembly from Kings County. The 1974 plan did not change the number of districts with nonwhite majorities but did change the size of the nonwhite majorities in most of those districts. To attain a nonwhite majority of 65%, which it was felt would be acceptable to the Attorney General for the assembly district in which the Hasidic Jewish community was located (which had been 61% nonwhite under the 1972 plan), a portion of the white population, including part of the Hasidic community, was reassigned to an adjoining district, and that community was also split between two senatorial districts though it had been within one such district under the 1972 plan. Petitioners, on behalf of the Hasidic community, brought this suit for injunctive and declaratory relief, alleging that the 1974 plan violated their rights under the Fourteenth and Fifteenth Amendments. Petitioners contend that the plan 'would dilute the value of (their) franchise by halving its effectiveness,' solely for the purpose of achieving a racial quota, and that they were assigned to electoral districts solely on the basis of race. Upon motions by the Attorney General (who had advised the State that he did not object to the 1974 plan) and an intervenor, the District Court dismissed the complaint, holding that petitioners enjoyed no constitutional right in reapportionment to separate community recognition as Hasidic Jews; that the redistricting did not disenfranchise them; and that racial considerations were permissible to correct past discrimination. The Court of Appeals affirmed. Noting that the 1974 plan left approximately 70% of the Kings County senate and assembly districts with white majorities and that only 65% of the county was white, the court held that the plan would not underrepresent the white population. The court, relying on Allen v. State Board of Elections, 393 U.S. 544, 569, 89 S.Ct. 817, 833-834, 22 L.Ed.2d 1, concluded that a State could use racial considerations in an effort to secure the approval of the Attorney General under the Voting Rights Act, reasoning that the Act contemplated that he and the state legislature would have 'to think in racial terms'; because the Act 'necessarily deals with race or color, corrective action under it must do the same.' Held: The judgment is affirmed. Pp. 155-168; (opinion of White, J.); pp. 179-180 (opinion of Stewart, J.).
1
510 F.2d 512, affirmed.
2
Mr. Justice White, joined by Mr. Justice Brennan, Mr. Justice Blackmun, and Mr. Justice Stevens, concluded that the use of racial criteria by the State of New York in its 1974 plan in attempting to comply with § 5 of the Act and to secure the approval of the Attorney General did not violate the Fourteenth or Fifteenth Amendment. Pp. 155-165.
3
(a) Under § 5, new or revised reapportionment plans are among those voting procedures, standards, or practices that may not be adopted by a State covered by the Act without a ruling by the Attorney General or the specified court that the plan does not have a racially discriminatory purpose or effect. Allen v. State Board of Elections, supra. Pp. 157-159.
4
(b) Compliance with the Act in reapportionment cases will often necessitate the use of racial considerations in drawing district lines, and the Constitution does not prevent a State subject to the Act from deliberately creating or preserving black majorities in particular districts in order to ensure that its reapportionment plan complies with § 5. Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629; City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245. Pp. 159-161.
5
(c) Permissible use of racial criteria is not confined to eliminating the effects of past discriminatory districting or apportionment. P. 161.
6
(d) A reapportionment cannot violate the Fourteenth or Fifteenth Amendment merely because a State uses specific numerical quotas in establishing a certain number of black majority districts. P. 162.
7
(e) Petitioners have not shown or offered to prove that minority voting and thus have not shown that New York did more than the Attorney General was authorized to require it to do under the nonretrogression principle of Beer v. United States, supra, a principle that this Court has accepted as constitutionally valid. Pp. 162-165.
8
Mr. Justice White, joined by Mr. Justice Stevens and Mr. Justice Rehnquist, concluded that, wholly aside from New York's obligations under the Act to preserve minority voting strength in Kings County, the Constitution permits the State to draw lines deliberately in such a way that the percentage of districts with a nonwhite majority roughly approximates the percentage of nonwhites in the county. Though in individual districts where nonwhite majorities were increased to about 65% it became more likely that nonwhite candidates would be elected, as long as Kings County whites, as a group, were provided with fair representation, there was no cognizable discrimination against whites. See Gaffney v. Cummings, 412 U.S. 735, 754, 93 S.Ct. 2321, 2332, 37 L.Ed.2d 298. Pp. 165-168.
9
Mr. Justice Stewart, joined by Mr. Justice Powell, concluded that, having failed to show that the 1974 plan had either the purpose or effect of discriminating against them because of their race, petitioners, who erroneously contend that racial awareness in legislative reapportionment is unconstitutional per se, have offered no basis for affording them the constitutional relief that they seek. Pp. 179-180.
10
Nathan Lewin, Washington, D.C., for petitioners.
11
Louis H. Pollak, Philadelphia, Pa., for NAACP and others.
12
Sol. Gen. Robert H. Bork, Washington, D.C., for United States.
13
George D. Zuckerman, New York City, for respondents.
14
Mr. Justice WHITE announced the judgment of the Court and filed an opinion in which Mr. Justice STEVENS joined; Parts I, II, and III of which are joined by Mr. Justice BRENNAN and Mr. Justice BLACKMUN; and Parts I and IV of which are joined by Mr. Justice REHNQUIST.
15
Section 5 of the Voting rights Act of 1965 prohibits a State or political subdivision subject to § 4 of the Act from implementing a legislative reapportionment unless it has obtained a declaratory judgment from the District Court for the District of Columbia, or a ruling from the Attorney General of the United States, that the reapportionment 'does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color . . ..'1 The question presented is whether, in the circumstances of this case, the use of racial criteria by the State of New York in its attempt to comply with § 5 of the Voting Rights Act and to secure the approval of the Attorney General violated the Fourteenth or Fifteenth Amendment.
16
* Kings County, N. Y., together with New York (Manhattan) and Bronx Counties, became subject to §§ 4 and 5 of the Act, by virtue of a determination by the Attorney General that a literacy test was used in these three counties as of November 1, 1968, and a determination by the Director of the Census that fewer than 50% of the voting-age residents of these three counties voted in the Presidential election of 1968.2 Litigation to secure exemption from the Act was unsuccessful,3 and it became necessary for New York to secure the approval of the Attorney General or of the United States District Court for the District of Columbia for its 1972 reapportionment statute insofar as that statute concerned Kings, New York, and Bronx Counties. On January 31, 1974, the provisions of the statute districting these counties for congressional, state senate, and state assembly seats were submitted to the Attorney General. In accordance with the regulations governing his § 5 review, the Attorney General considered submissions from interested parties criticizing and defending the plan.4 Those submissions included assertions that voting in these counties was racially polarized and that the district lines had been created with the purpose or effect of diluting the voting strength of nonwhites (blacks and Puerto Ricans).5 On April 1, 1974, the Attorney General concluded that, as to certain districts in Kings County covering the Bedford-Stuyvesant area of Brooklyn, the State had not met the burden placed on it by § 5 and the regulations thereunder to demonstrate that the redistricting had neither the purpose nor the effect of abridging the right to vote by reason of race or color.6
17
Under § 5, the State could have challenged the Attorney General's objections to the redistricting plan by filing a declaratory judgment action in a three-judge court in the District of Columbia. Instead, the State sought to meet what it understood to be the Attorney General's objections and to secure his approval in order that the 1974 primary and general elections could go forward under the 1972 statute.7 A revised plan, submitted to the Attorney General on May 31, 1974, in its essentials did not change the number of districts with nonwhite majorities, but did change the size of the nonwhite majorities in most of those districts. Under the 1972 plan, Kings County had three state senate districts with nonwhite majorities of approximately 91%, 61%, and 53%; under the revised 1974 plan, there were again three districts with nonwhite majorities, but now all three were between 70% and 75% nonwhite.8 As for state assembly districts, both the 1972 and the 1974 plans provided for seven districts with nonwhite majorities. However, under the 1972 plan, there were four between 85% and 95% nonwhite, and three were approximately 76%, 61%, and 52%, respectively; under the 1974 plan, the two smallest nonwhite majorities were increased to 65% and 67.5%, and the two largest nonwhite majorities were decreased from greater than 90% to between 80% and 90%.9 The report of the legislative committee on reapportionment stated that these changes were made 'to overcome Justice Department objections' by creating more 'substantial nonwhite majorities' in two assembly districts and two senate districts.10
18
One of the communities affected by these revisions in the Kings County reapportionment plan was the Williamsburgh area, where about 30,000 Hasidic Jews live. Under the 1972 plan, the Hasidic community was located entirely in one assembly district (61% nonwhite) and one senate district (37% nonwhite); in order to create substantial nonwhite majorities in these districts, the 1974 revisions split the Hasidic community between two senate and two assembly districts. A staff member of the legislative reapportionment committee testified that in the course of meetings and telephone conversations with Justice Department officials, he 'got the feeling . . . that 65 percent would be probably an approved figure' for the nonwhite population in the assembly district in which the Hasidic community was located, a district approximately 61% nonwhite under the 1972 plan.11 To attain the 65% figure, a portion of the white population, including part of the Hasidic community, was reassigned to an adjoining district.
19
Shortly after the State submitted this revised redistricting plan for Kings County to the Attorney General, petitioners sued on behalf of the Hasidic Jewish community of Williamsburgh, alleging that the 1974 plan 'would dilute the value of each plaintiff's franchise by halving its effectiveness,' solely for the purpose of achieving a racial quota and therefore in violation of the Fourteenth Amendment. Petitioners also alleged that they were assigned to electoral districts solely on the basis of race, and that this racial assignment diluted their voting power in violation of the Fifteenth Amendment. Petitioners sought an injunction restraining New York officials from enforcing the new redistricting plan and a declaratory judgment that the Attorney General of the United States had used unconstitutional and improper standards in objecting to the 1972 plan.
20
On June 20, 1974, the District Court held a hearing on petitioners' motion for a preliminary injunction. On July 1, 1974, the Attorney General informed the State of New York that he did not object to the implementation of the revised plan. The Attorney General moved to be dismissed as a party on the ground that the relief sought against him could be obtained only in the District court for the the District of Columbia and only by a State or political subdivision subject to the Voting Rights Act; the State and the intervenor NAACP moved to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. The District Court granted the motions to dismiss the complaint, reasoning that petitioners enjoyed no constitutional right in reapportionment to separate community recognition as Hasidic Jews, that the redistricting did not disenfranchise petitioners, and that racial considerations were permissible to correct past discrimination.12 United Jewish Organizations v. Wilson, 377 F.Supp. 1164, 1165-1166 (EDNY 1974).
21
A divided Court of Appeals affirmed. 510 F.2d 512 (CA2 1975). The majority first held that the Attorney General had to be dismissed as a party because the court had no jurisdiction to review his objection to the 1972 plan.13 After agreeing with the District Court that petitioners had no constitutional right to separate community recognition in reapportionment a holding not challenged by petitioners here14 the Court of Appeals went on to address petitioners' claims as white voters that the 1974 plan denied them equal protection of the laws and abridged their right to vote on the basis of race. The court noted that the 1974 plan left approximately 70% of the senate and assembly districts in Kings County with white majorities; given that only 65% of the population of the county was white, the 1974 plan would not underrepresent the white population, assuming that voting followed racial lines. Id., at 523, and n. 21. Petitioners thus could not claim that the plan canceled out the voting strength of whites as a racial group, under this Court's decisions in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). The court then observed that the case did not present the question whether a legislature, 'starting afresh,' could draw lines on a racial basis so as to bolster nonwhite voting strength, but rather the 'narrower' question whether a State could use racial considerations in drawing lines in an effort to secure the Attorney General's approval under the Voting Rights Act. 510 F.2d, at 524. The court though this question answered by this Court's decision in Allen v. State Board of Elections, 393 U.S. 544, 569, 89 S.Ct. 817, 833-834, 22 L.Ed.2d 1 (1969), where a change from district to at-large voting for county supervisors was held to be covered by § 5 of the Act. The court below reasoned that the Act contemplated that the Attorney General and the state legislature would have 'to think in racial terms'; because the Act 'necessarily deals with race or color, corrective action under it must do the same.' 510 F.2d, at 525. (Emphasis in original; footnote omitted.) The court held that
22
'so long as a districting, even though based on racial considerations, is in conformity with the unchallenged directive of and has the approval of the Attorney General of the United States under the Act, at least absent a clear showing that the resultant legislative reapportionment is unfairly prejudicial to white or nonwhite, that districting is not subject to challenge.' Ibid.15
23
We granted certiorari, 423 U.S. 945, 96 S.Ct. 354, 46 L.Ed.2d 276 (1975). We affirm.
II
24
Petitioners argue that the New York Legislature, although seeking to comply with the Voting Rights Act as construed by the Attorney General, has violated the Fourteenth and Fifteenth Amendments by deliberately revising its reapportionment plan along racial lines.16 In rejecting petitioners' claim, we address four propositions: First, that whatever might be true in other contexts, the use of racial criteria in districting and apportionment is never permissible; second, that even if racial considerations may be used to redraw district lines in order to remedy the residual effects of past unconstitutional reapportionments, there are no findings here of prior discriminations that would require or justify as a remedy that white voters be reassigned in order to increase the size of black majorities in certain districts; third, that the use of a 'racial quota' in redistricting in never acceptable; and fourth, that even if the foregoing general propositions are infirm, what New York actually did in this case was unconstitutional, particularly its use of a 65% nonwhite racial quota for certain districts. The first three arguments, as we now explain, are foreclosed by our cases construing and sustaining the constitutionality of the Voting Rights Act; the fourth we address in Parts III and IV.
25
It is apparent from the face of the Act, from its legislative history, and from our cases that the Act itself was broadly remedial in the sense that it was 'designed by Congress to banish the blight of racial discrimination in voting . . ..' South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 808, 15 L.Ed.2d 769 (1966). It is also plain, however, that after 'repeatedly try(ing) to cope with the problem by facilitating case-by-case litigation against voting discrimination,' id., at 313, 86 S.ct., at 810, Congress became dissatisfied with this approach, which required judicial findings of unconstitutional discrimination in specific situations and judicially approved remedies to cure that discrimination. Instead, Congress devised more stringent measures, one of which, § 5, required the covered States to seek the approval of either the Attorney General or of a three-judge court in the District of Columbia whenever they sought to implement new voting procedures. Under § 4, a State became came subject to § 5 whenever it was administratively determined that certain conditions which experience had proved were indicative of racial discrimination in voting had existed in the area in the case of New York, as already indicated, p. 148, supra, that a literacy test was in use in certain counties in 1968 and that fewer than 50% of the voting age residents in these counties voted in the presidential election that year. At that point, New York could have escaped coverage by undertaking to demonstrate to the appropriate court that the test had not been used to discriminate within the past 10 years, an effort New York unsuccessfully made. See n. 3, supra.
26
Given this coverage of the counties involved, it is evident that the Act's prohibition against instituting new voting procedures without the approval of the Attorney General or the three-judge District Court is not dependent upon proving past unconstitutional apportionments and that in operation the Act is aimed at preventing the use of new procedures until their capacity for discrimination has been examined by the Attorney General or by a court. Although recognizing that the 'stringent new remedies,' including § 5, were 'an uncommon exercise of congressional power,' we nevertheless sustained the Act as a 'permissibly decisive' response to 'the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetrating voting discrimination in the face of adverse federal court decrees.' South Carolina v. Katzenbach, supra, 383 U.S., at 334-335, 86 S.Ct. at 822 (footnote omitted).
27
It is also clear that under § 5, new or revised reapportionment plans are among those voting procedures, standards or practices that may not be adopted by a covered State without the Attorney General's or a three-judge court's ruling that the plan 'does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.' In Allen v. State Board of Elections, on which the Court of Appeals relied below, we held that a change from district to at-large voting for county supervisors had to be submitted for federal approval under § 5, because of the potential for a 'dilution' of minority voting power which could 'nullify (its) ability to elect the candidate of (its) choice . . ..' 393 U.S., at 569, 89 S.Ct., at 834. When it renewed the Voting Rights Act in 1970 and again in 1975, Congress was well aware of the application of § 5 to redistricting. In its 1970 extension, Congress relied on findings by the United States Commission on Civil Rights that the newly gained voting strength of minorities was in danger of being diluted by redistricting plans that divided minority communities among predominantly white districts.17 In 1975, Congress was unmistakably cognizant of this new phase in the effort to eliminate voting discrimination. Former Attorney General Katzenbach testified that § 5 'has had its broadest impact . . . in the areas of redistricting and reapportionment,' and the Senate and House reports recommending the extension of the Act referred specifically to the Attorney General's role in screening redistricting plans to protect the opportunities for nonwhites to be elected to public office.18
28
As the Court of Appeals understood the Act and our decision in Allen, compliance with the Act in reapportionment cases would often necessitate the use of racial considerations in drawing district lines. That the Court of Appeals correctly read the Act has become clearer from later cases.
29
In Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976), the Court considered the question of what criteria a legislative reapportionment must satisfy under § 5 of the Voting Rights Act to demonstrate that it does not have the 'effect' of denying or abridging the right to vote on account of race. Beer established that the Voting Rights Act does not permit the implementation of a reapportionment that 'would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.' 425 U.S., at 141, 96 S.Ct., at 1364. This test was satisfied where the reapportionment increased the percentage of districts where members of racial minorities protected by the Act were in the majority. See ibid. But if this test were not met, clearance by the Attorney General or the District Court for the District of Columbia could not be given, and the reapportionmment could not be implemented.
30
The reapportionment at issue in Beer was approved by this Court, because New Orleans had created one councilmanic district with a majority of black voters where none existed before. But had there been districts with black majorities under the previous law and had New Orleans in fact decreased the number of majority black districts, it would have had to modify its plan in order to implement its reapportionment by carving out a large enough black majority in however many additional districts would be necessary to satisfy the Beer test. There was division on the Court as to what a State must show to satisfy § 5; but all eight Justices who participated in the decision implicitly accepted the proposition that a State may revise its reapportionment plan to comply with § 5 by increasing the percentage of black voters in a particular district until it has produced a clear majority. See 425 U.S., at 141-142, 96 S.Ct., at 1364; id., at 144, 96 S.Ct., at 1365 (White, J., dissenting); id., at 158-161, 96 S.Ct., at 1372-1373 (Marshall, J., dissenting). Indeed, the plan eventually approved by this Court in Beer was drawn with the purpose of avoiding dilution of the black vote by attaining at least a 54% majority of black voters in one district while preventing a 90% concentration. See App. in Beer v. United States, O.T.1975, No. 73-1869, pp. 341-342.
31
The Court has taken a similar approach in applying § 5 to the extension of city Boundaries through annexation. Where the annexation has the effect of reducing the percentage of blacks in the city, the proscribed 'effect' on voting rights can be avoided by a post-annexation districting plan which 'fairly reflects the strength of the Negro community as it exists after the annexation' and which 'would afford (it) representation reasonably equivalent to (its) political strength in the enlarged community.' City of Richmond v. United States, 422 U.S. 358, 370-371, 95 S.Ct. 2296, 2304, 45 L.Ed.2d 245 (1975). Accord, City of Petersburg v. United States, 354 F.Supp. 1021 (D.C.1972), summarily aff'd, 410 U.S. 962, 93 S.Ct. 1441, 35 L.Ed.2d 698 (1973). In City of Richmond, the Court approved an annexation which reduced the proportion of blacks in the city from 52% to 42%, because the post-annexation ward system created four out of nine wards with substantial black majorities of 64%. Had the redistricting failed to 'fairly (reflect) the strength of the Negro community,' however, it would follow from the Court's decision that the Constitution would permit the city to modify its plan by deliberately creating black majorities in a sufficient number of wards to satisfy statutory requirements.
32
Implicit in Beer and City of Richmond, then, is the proposition that the Constitution does not prevent a State subject to the Voting Rights Act from deliberately creating or preserving black majorities in particular districts in order to ensure that its reapportionment plan complies with § 5. That proposition must be rejected and § 5 held unconstitutional to that extent if we are to accept petitioners' view that racial criteria may never be used in redistricting or that they may be used, if at all, only as a specific remedy for past unconstitutional apportionments. We are unwilling to overturn our prior cases, however. Section 5 and its authorization for racial redistricting where appropriate to avoid abridging the right to vote on account of race or color are constitutional. Contrary to petitioners' first argument, neither the Fourteenth nor the Fifteenth Amendment mandates any per se rule against using racial factors in districting and apportionment. Nor is petitioners' second argument valid. The permissible use of racial criteria is not confined to eliminating the effects of past discriminatory districting or apportionment.19
33
Moreover, in the process of drawing black majority districts in order to comply with § 5, the State must decide how substantial those majorities must be in order to satisfy the Voting Rights Act. The figure used in drawing the Beer plan, for example, was 54% of registered voters.20 At a minimum and by definition, a 'black majority district' must be more than 50% black. But whatever the specific percentage, the State will inevitably arrive at it as a necessary means to ensure the opportunity for the election of a black representative and to obtain approval of its reapportionment plan. Unless we adopted an unconstitutional construction of § 5 in Beer and City of Richmond, a reapportionment cannot violate the Fourteenth or Fifteenth Amendment merely because a State uses specific numerical quotas in establishing a certain number of black majority districts. Our cases under § 5 stand for at least this much.
III
34
Having rejected these three broad objections to the use of racial criteria in redistricting under the Voting Rights Act, we turn to the fourth question, which is whether the racial criteria New York used in this case the revision of the 1972 plan to create 65% nonwhite majorities in two additional senate and two additional assembly districts were constitutionally infirm. We hold they are not, on two separate grounds. The first is addressed in this Part III, the second in Part IV.
35
The first ground is that petitioners have not shown, or offered to prove, that New York did more than the Attorney General was authorized to require it to do under the nonretrogression principle of Beer, a principle that, as we have already indicated, this Court has accepted as constitutionally valid. Under Beer, the acceptability of New York's 1972 reapportionment for purposes of § 5 depends on the change in nonwhite voting strength in comparison with the previous apportionment, which occurred in 1966. Yet there is no evidence in the record to show whether the 1972 plan increased or decreased the number of senate or assembly districts with substantial nonwhite majorities of 65%. For all that petitioners have alleged or proved, the 1974 revisions may have accomplished nothing more than the restoration of nonwhite voting strength to 1966 levels.21 To be successful in their constitutional challenge to the racial criteria used in New York's revised plan, petitioners must show at a minimum that minority voting strength was increased under the 1974 plan in comparison with the 1966 apportionment; otherwise the challenge amounts to a constitutional attack on compliance with the statutory rule of non-retrogression.
36
In the absence of any evidence regarding nonwhite voting strength under the 1966 apportionment, the creation of substantial nonwhite majorities in approximately 30% of the senate and assembly districts in Kings County was reasonably related to the constitutionally valid statutory mandate of maintaining nonwhite voting strength. The percentage of districts with nonwhite majorities was less than the percentage of nonwhites in the county as a whole (35%). The size of the nonwhite majorities in those districts reflected the need to take account of the substantial difference between the nonwhite percentage of the total population in a district and the nonwhite percentage of the voting-age population.22 Because, as the Court said in Beer, the inquiry under § 5 focuses ultimately on 'the position of racial minorities with respect to their effective exercise of the electoral franchise,' 425 U.S., at 141, 96 S.Ct., at 1364, the percentage of eligible voters by districts is of great importance to that inquiry.23 In the redistricting plan approved in Beer, for example, only one of the two districts with a black population majority also had a black majority of registered voters. Id., at 142, 96 S.Ct., at 1364. We think it was reasonable for the Attorney General to conclude in this case that a substantial nonwhite population majority in the vicinity of 65% would be required to achieve a nonwhite majority of eligible voters.
37
Petitioners have not shown that New York did more than accede to a position taken by the Attorney General that was authorized by our constitutionally permissible construction of § 5. New York adopted the 1974 plan because it sought to comply with the Voting Rights Act. This has been its primary defense of the plan, which was sustained on that basis by the Court of Appeals. Because the Court of Appeals was essentially correct, its judgment may be affirmed without addressing the additional argument by New York and by the United States that, wholly aside from New York's obligation under the Voting Rights Act to preserve minority voting strength in Kings County, the Constitution permits it to draw district lines deliberately in such a way that the percentage of districts with a nonwhite majority roughly approximates the percentage of nonwhites in the county.
IV
38
This additional argument, however, affords a second, and independent, ground for sustaining the particulars of the 1974 plan for Kings County. Whether or not the plan was authorized by or was in compliance with § 5 of the Voting Rights Act, New York was free to do what it did as long as it did not violate the Constitution, particularly the Fourteenth and Fifteenth Amendments; and we are convinced that neither Amendment was infringed.
39
There is no doubt that in preparing the 1974 legislation the State deliberately used race in a purposeful manner. But its plan represented no racial slur or stigma with respect to whites or any other race, and we discern no discrimination violative of the Fourteenth Amendment nor any abridgment of the right to vote on account of race within the meaning of the Fifteenth Amendment.
40
It is true that New York deliberately increased the nonwhite majorities in certain districts in order to enhance the opportunity for election of nonwhite representatives from those districts. Nevertheless, there was no fencing out the white population from participation in the political processes of the county, and the plan did not minimize or unfairly cancel out white voting strength. Compare White v. Regester, 412 U.S., at 765-767, 93 S.Ct., at 2339-2340, and Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), with Gaffney v. Cummings, 412 U.S. 735, 751-754, 93 S.Ct. 2321, 2330-2332, 37 L.Ed.2d 298 (1973). Petitioners have not objected to the impact of the 1974 plan on the representation of white voters in the county or in the State as a whole. As the Court of Appeals observed, the plan left white majorities in approximately 70% of the assembly and senate districts in Kings County, which had a countywide population that was 65% white. Thus, even if voting in the county occurred strictly according to race, whites would not be underrepresented relative to their share of the population.
41
In individual districts where nonwhite majorities were increased to approximately 65%, it became more likely, given racial bloc voting, that black candidates would be elected instead of their white opponents, and it became less likely that white voters would be represented by a member of their own race; but as long as whites in Kings County, as a group, were provided with fair representation, we cannot conclude that there was a cognizable discrimination against whites or an abridgment of their right to vote on the grounds of race.24 Furthermore, the individual voter in the district with a nonwhite majority has no constitutional complaint merely because his candidate has lost out at the polls and his district is represented by a person for whom he did not vote. Some candidate, along with his supporters, always loses. See Whitcomb v. Chavis, 403 U.S. at 153-160, 91 S.Ct., at 1874-1878.
42
Where it occurs, voting for or against a candidate because of his race is an unfortunate practice. But it is not rare; and in any district where it regularly happens, it is unlikely that any candidate will be elected who is a member of the race that is in the minority in that district. However disagreeable this result may be, there is no authority for the proposition that the candidates who are found racially unacceptable by the majority, and the minority voters supporting those candidates, have had their Fourteenth or Fifteenth Amendment rights infringed by this process. Their position is similar to that of the Democratic or Republican minority that is submerged year after year by the adherents to the majority party who tend to vote a straight party line.
43
It does not follow, however, that the State is powerless to minimize the consequences of racial discrimination by voters when it is regularly practiced at the polls. In Gaffney v. Cummings, the Court upheld a districting plan 'drawn with the conscious intent to . . . achieve a rough approximation of the statewide political strengths of the Democratic and Republican Parties.' 412 U.S., at 752, 93 S.Ct., at 2331. We there recognized that districting plans would be vulnerable under our cases if 'racial or political groups have been fenced out of the political process and their voting strength invidiously minimized,' id., at 754, 93 S.Ct., at 2332 (emphasis added); but that was not the case there, and no such purpose or effect may be ascribed to New York's 1974 plan. Rather, that plan can be viewed as seeking to alleviate the consequences of racial voting at the polls and to achieve a fair allocation of political power between white and nonwhite voters in Kings County.
44
In this respect New York's revision of certain district lines is little different in kind from the decision by a State in which a racial minority is unable to elect representatives from multimember districts to change to single-member districting for the purpose of increasing minority representation. This change might substantially increase minority representation at the expense of white voters, who previously elected all of the legislators but who with single-member districts could elect no more than their proportional share. If this intentional reduction of white voting power would be constitutionally permissible, as we think it would be, we think it also permissible for a State, employing sound districting principles such as compactness and population equality, to attempt to prevent racial minorities from being repeatedly outvoted by creating districts that will afford fair representation to the members of those racial groups who are sufficiently numerous and whose residential patterns afford the opportunity of creating districts in which they will be in the majority.
As the Court said in Gaffney:
45
'(C)ourts have (no) constitutional warrant to invalidate a state plan, otherwise within tolerable population limits, because it undertakes, not to minimize or eliminate the political strength of any group or party, but to recognize it and, through districting, provide a rough sort of proportional representation in the legislative halls of the State.' Ibid.
46
New York was well within this rule when, under the circumstances present in Kings County, it amended its 1972 plan.25
The judgment is
47
Affirmed.
48
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
49
Mr. Justice BRENNAN, concurring in part.
50
I join Parts I, II, and III of Mr. Justice WHITE's opinion. Part II effectively demonstrates that prior cases firmly establish the Attorney General's expansive authority to oversee legislative redistricting under § 5 of the Voting Rights Act. See, e. g. Georgia v. United States, 411 U.S. 526, 532, 93 S.Ct. 1702, 1706, 36 L.Ed.2d 472 (1973); Allen v. State Board of Elections, 393 U.S. 544, 566, 569, 89 S.Ct. 817, 833-834, 22 L.Ed.2d 1 (1969). Part III establishes to my satisfaction that as a method of securing compliance with the Voting Rights Act, the 65% rule applied to Brooklyn in this instance was not arbitrarily or casually selected. Yet, because this case carries us further down the road of race-centered remedial devices that we have heretofore traveled with the serious questions of fairness that attend such matters I offer this further explanation of my position.
51
The one starkly clear fact of this case is that an overt racial number was employed to effect petitioners' assignment to voting districts. In brief, following the Attorney General's refusal to certify the 1972 reapportionment under his § 5 powers, unnamed Justice Department officials made known that satisfaction of the Voting Rights Act in Brooklyn would necessitate creation by the state legislature of 10 state assembly and senate districts with threshold nonwhite populations of 65%. Prompted by the necessity of preventing interference with the upcoming 1974 election, state officials complied. Thus, the Justice Department's unofficial instruction to state officials effectively resulted in an explicit process of assignment to voting districts pursuant to race. The result of this process was a countywide pattern of districting closely approximating proportional representation. While it is true that this demographic outcome did not 'underrepresent the white population' throughout the county, ante, at 154, indeed, the very definition of proportional representation precludes either underrepresentation or overrepresentation these particular petitioners filed suit to complain that the have been subjected to a process of classification on the basis of race that adversely altered their status.
52
If we were presented here with a classification of voters motivated by racial animus, City of Richmond v. United States, 422 U.S. 358, 378, 95 S.Ct. 2296, 2307, 45 L.Ed.2d 245 (1975); Wright v. Rockefeller, 376 U.S. 52, 58, 84 S.Ct. 603, 606, 11 L.Ed.2d 512 (1964); Gomillion v. Lightfoot, 364 U.S. 339, 347, 81 S.Ct. 125, 130, 5 L.Ed.2d 110 (1960), or with a classification that effectively downgraded minority participation in the franchise, Georgia v. United States, supra, 411 U.S., at 534, 93 S.Ct., at 1707; Whitcomb v. Chavis, 403 U.S. 124, 144, 91 S.Ct. 1858, 1869, 29 L.Ed.2d 363 (1971), we promptly would characterize the resort to race as 'suspect' and prohibit its use. Under such circumstances, the tainted apportionment process would not necessarily be saved by its proportional outcome, for the segregation of voters into 'separate but equal' blocs still might well have the intent or effect of diluting the voting power of minority voters. See, e. g., City of Richmond v. United States, supra, 422 U.S., at 378, 95 S.Ct., at 2307; Wright v. Rockefeller, supra, 376 U.S., at 53-54, 84 S.Ct., at 603-604; infra, at 172-173. It follows, therefore, that if the racial redistricting involved here, imposed with the avowed intention of clustering together 10 viable nonwhite majorities at the expense of preexisting white groupings, is not similarly to be prohibited, the distinctiveness that avoids this prohibition must arise from either or both of two considerations: the permissibility of affording preferential treatment to disadvantaged nonwhites generally, or the particularized application of the Voting Rights Act in this instance.
53
The first and broader of the two plausible distinctions rests upon the general propriety of so-called benign discrimination: The challenged race assignment may be permissible because it is cast in a remedial context with respect to a disadvantaged class rather than in a setting that aims to demean or insult any racial group. Even in the absence of the Voting Rights Act, this preferential policy plausibly could find expression in a state decision to overcome nonwhite disadvantages in voter registration or turnout through redefinition of electoral districts perhaps, as here, through the application of a numerical rule in order to achieve a proportional distribution of voting power. Such a decision, in my view, raises particularly sensitive issues of doctrine and policy. Unlike Part IV of Mr. Justice WHITE's opinion,1 I am wholly content to leave this thorny question until another day, for I am convinced that the existence of the Voting Rights Act makes such a decision unnecessary and alone suffices to support an affirmance of the judgment before us.
54
I begin with the settled principle that not every remedial use of race is forbidden. For example, we have authorized and even required race-conscious remedies in a variety of corrective settings. See, e. g., Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 25, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971); United States v. Montgomery County Bd. of Education, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969); Franks v. Bowman Transp. Co., 424 U.S. 747, 772-774, 96 S.Ct. 1251, 1268-1269, 47 L.Ed.2d 444 (1976); ante, at 160. Once it is established that circumstances exist where race may be taken into account in fashioning affirmative policies,2 we must identify those circumstances, and further, determine how substantial a reliance may be placed upon race. If resort to the 65% rule involved here is not to be sanctioned, that must be because the benign use of such a binding numerical criterion (under the Voting Rights Act) generates problems of constitutional dimension that are not relevant to other, previously tolerated race-conscious remedies. As a focus for consideration of what these problems might or might not be, it is instructive to consider some of the objections frequently raised to the use of overt preferential race-assignment practices.
55
First, a purportedly preferential race assignment may in fact disguise a policy that perpetuates disadvantageous treatment of the plan's supposed beneficiaries. Accordingly courts might face considerable difficulty in ascertaining whether a given race classification truly furthers benign rather than illicit objectives. An effort to achieve proportional representation, for example, might be aimed at aiding a group's participation in the political processes by guaranteeing safe political offices, or, on the other hand, might be a 'contrivance to segregate' the group, Wright v. Rockefeller, supra, 376 U.S., at 58, 84 S.Ct., at 606, thereby frustrating its potentially successful efforts at coalition building across racial lines. Compare, e. g., the positions of the black plaintiffs in Wright, supra, at 53-54, 84 S.Ct., at 603-604, with the black intervenors, 376 U.S., at 62, 84 S.Ct., at 608 (Douglas, J., dissenting). Indeed, even the present case is not entirely free of complaints that the remedial redistricting in Brooklyn is not truly benign. Puerto Rican groups, for example, who have been joined with black groups to establish the 'nonwhite' category, protested to the Attorney General that their political strength under the 1974 reapportionment actually is weaker than under the invalidated 1972 districting. App. 295. A black group similarly complained of the loss of a 'safe' seat because of the inadequacy of the 65% target figure. Id., at 296-297. These particular objections, as the Attorney General argued in his memorandum endorsing the 1974 reapportionment, may be ill advised and unpersuasive. Nevertheless, they illustrate the risk that what is presented as an instance of benign race assignment in fact may prove to be otherwise. This concern, of course, does not undercut the theoretical legitimacy or usefulness of preferential policies. At the minimum, however, it does suggest the need for careful consideration of the operation of any racial device, even one cloaked in preferential garb. And if judicial detection of truly benign policies proves impossible or excessively crude, that alone might warrant invalidating any race-drawn line.
56
Second, even in the pursuit of remedial objectives, an explicit policy of assignment by race may serve to stimulate our society's latent race consciousness, suggesting the utility and propriety of basing decisions on a factor that ideally bears no relationship to an individual's worth or needs. See, e. g., Kaplan, Equal Justice in an Unequal World: Equality for the Negro The Problem of Special Treatment, 61 Nw.U.L.Rev. 363, 379-380 (1966). Furthermore, even preferential treatment may act to stigmatize its recipient groups, for although intended to correct systemic or institutional inequities, such policy may imply to some the recipients' inferiority and especial need for protection.3 Again, these matters would not necessarily speak against the wisdom or permissibility of selective, benign racial classifications. But they demonstrate that the considerations that historically led us to treat race as a constitutionally 'suspect' method of classifying individuals are not entirely vitiated in a preferential context.
57
Third, especially when interpreting the broad principles embraced by the Equal Protection Clause, we cannot well ignore the social reality that even a benign policy of assignment by race is viewed as unjust by many in our society, especially by those individuals who are adversely affected by a given classification. This impression of injustice may be heightened by the natural consequence of our governing processes that the most 'discrete and insular' of whites often will be called upon to bear the immediate, direct costs of benign discrimination. See, e. g., Kaplan, supra, at 373-374; cf. Ely, The Constitutionality of Reverse Racial Discrimination, 41 U.Chi.L.Rev. 723, 737-738 (1974). Perhaps not surprisingly, there are indications that this case affords an example of just such decisionmaking in operation. For example, the respondent-intervenors take pains to emphasize that the mandated 65% rule could have been attained through redistricting strategies that did not slice the Hasidic community in half. State authorities, however, chose to localize the burdens of race reassignment upon the petitioners rather than to redistribute a more varied and diffused range of whites into predominantly nonwhite districts. Brief for Respondent-Intervenors 29-31. I am in no position to determine the accuracy of this appraisal, but the impression of unfairness is magnified when a coherent group like the Hasidim disproportionately bears the adverse consequences of a race-assignment policy.
58
In my view, if and when a decisionmaker embarks on a policy of benign racial sorting, he must weigh the concerns that I have discussed against the need for effective social policies promoting racial justice in a society beset by deep-rooted racial inequities. But I believe that Congress here adequately struck that balance in enacting the carefully conceived remedial scheme embodied in the Voting Rights Act. However the Court ultimately decides the constitutional legitimacy of 'reverse discrimination' pure and simple, I am convinced that the application of the Voting Rights Act substantially minimizes the objections to preferential treatment, and legitimates the use of even overt, numerical racial devices in electoral redistricting.
59
The participation of the Attorney General, for example, largely relieves the judiciary of the need to grapple with the difficulties of distinguishing benign from malign discrimination. Under § 5 of the Act, the Attorney General in effect is constituted champion of the interests of minority voters, and accompanying implementing regulations ensure the availability of materials and submissions necessary to discern the true effect of a proposed reapportionment plan. See 28 CFR § 51.19 (1976). This initial right of review, coupled with the factfinding competence of the Justice Department, substantially reduces the likelihood that a complicated reapportionment plan that silently furthers malign racial policies would escape detection by appropriate officials. As a practical matter, therefore, I am prepared to accord considerable deference to the judgment of the Attorney General that a particular districting scheme complies with the remedial objectives furthered by the Voting Rights Act.
60
Similarly, the history of the Voting Rights Act provides reassurance that, in the face of the potential for reinvigorating racial partisanship, the congressional decision to authorize the use of race-oriented remedies in this context was the product of substantial and careful deliberations. Enacted following 'voluminous legislative' consideration, South Carolina v. Katzenbach, 383 U.S. 301, 309, 86 S.Ct. 803, 808, 15 L.Ed.2d 769 (1966), the Voting Rights Act represents an unequivocal and well-defined congressional consensus on the national need for 'sterner and more elaborate measures,' ibid., to secure the promise of the Fourteenth and Fifteenth Amendments with respect to exercise of the franchise. Insofar as the drawing of district lines is a process that intrinsically involves numerical calculations, and insofar as state officials charged with the task of defining electoral constituencies are unlikely simply to close their eyes to considerations such as race and national origin,4 the resort to a numerical racial criterion as a method of achieving compliance with the aims of the Voting Rights Act is, in my view, consistent with that consensus. Whatever may be the indirect and undesirable counter-educational costs of employing such far-reaching racial devices, Congress had to confront these considerations before opting for an activist race-conscious remedial role supervised by federal officials. The 'insidious and pervasive' evil of voting rights violations, 383 U.S., at 309, 86 S.Ct., at 808 and the 'specially informed legislative competence' in this area, Katzenbach v. Morgan, 384 U.S. 641, 656, 86 S.Ct. 1717, 1726, 16 L.Ed.2d 828 (1966); cf. Morton v. Mancari, 417 U.S. 535, 555, 94 S.Ct. 2474, 2485, 41 L.Ed.2d 290 (1974), argue in support of the legitimacy of the federal decision to permit a broad range of race-conscious remedial techniques, including, as here, outright assignment by race.
61
This leaves, of course, the objection expressed by a variety of participants in this litigation: that this reapportionment worked the injustice of localizing the direct burdens of racial assignment upon a morally undifferentiated group of whites,5 and, indeed, a group that plausibly is peculiarly vulnerable to such injustice. This argument has both normative and emotional appeal, but for a variety of reasons I am convinced that the Voting Rights Act drains it of vitality.
62
First, it is important to recall that the Attorney General's oversight focuses upon jurisdictions whose prior practices exhibited the purpose or effect of infringing the right to vote on account of race, thereby triggering § 4 of the Act, 42 U.S.C. § 1973b (1970 ed. and Supp.). This direct nexus to localities with a history of discriminatory practices or effects enhances the legitimacy of the Attorney General's remedial authority6 over individuals within those communities who benefited (as whites) from those earlier discriminatory voting patterns. Moreover, the obvious remedial nature of the Act and its enactment by an elected Congress that hardly can be viewed as dominated by nonwhite representatives belie the possibility that the decisionmaker intended a racial insult or injury to those whites who are adversely affected by the operation of the Act's provisions.7 Finally, petitioners have not been deprived of their right to vote, a consideration that minimizes the detrimental impact of the remedial racial policies governing the § 5 reapportionment. True, petitioners are denied the opportunity to vote as a group in accordance with the earlier districting configuration, but they do not press any legal claim to a group voice as Hasidim. Brief for Petitioners 6 n. 6. In terms of their voting interests, then, the burden that they claim to suffer must be attributable solely to their relegation to increased nonwhite-dominated districts. Yet, to the extent that white and nonwhite interests and sentiments are polarized in Brooklyn, the mpetitioners still are indirectly 'protected' by the remaining white assembly and senate districts within the county, carefully preserved in accordance with the white proportion of the total county population. While these considerations obviously do not satisfy petitioners, I am persuaded that they reinforce the legitimacy of this remedy.
63
Since I find nothing in the first three parts of Mr. Justice WHITE's opinion that is inconsistent with the views expressed herein, I join those parts.
64
Mr. Justice STEWART, with whom Mr. Justice POWELL joins, concurring in the judgment.
65
The question presented for decision in this case is whether New York's use of racial criteria in redistricting Kings County violated the Fourteenth or Fifteenth Amendment. The petitioners' contention is essentially that racial awareness in legislative reapportionment is unconstitutional per se. Acceptance of their position would mark an egregious departure from the way this Court has in the past analyzed the constitutionality of claimed discrimination in dealing with the elective franchise on the basis of race.
66
The petitioners have made no showing that a racial criterion was used as a basis for denying them their right to vote, in contravention of the Fifteenth Amendment. See Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. They have made no showing that the redistricting scheme was employed as part of a 'contrivance to segregate'; to minimize or cancel out the voting strength of a minority class or interest; or otherwise to impair or burden the opportunity of affected persons to participate in the political process. See Wright v. Rockefeller, 376 U.S. 52, 58, 84 S.Ct. 603, 606, 11 L.Ed.2d 512; White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314; Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709; Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401.
67
Under the Fourteenth Amendment the question is whether the reapportionment plan represents purposeful discrimination against white voters. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597. Disproportionate impact may afford some evidence that an invidious purpose was present. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 256, 97 S.Ct. 555, 563, 50 L.Ed.2d 450. But the record here does not support a finding that the redistricting plan undervalued the political power of white voters relative to their numbers in Kings County. Cf. City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245. That the legislature was aware of race when it drew the district lines might also suggest a discriminatory purpose. Such awareness is not, however, the equivalent of discriminatory intent. The clear purpose with which the New York Legislature acted in response to the position of the United States Department of Justice under the Voting Rights Act forecloses any finding that it acted with the invidious purpose of discriminating against white voters.*
68
Having failed to show that the legislative reapportionment plan had either the purpose or the effect of discriminating against them on the basis of their race, the petitioners have offer no basis for affording them the constitutional relief they seek. Accordingly, I join the judgment of the Court.
69
Mr. Chief Justice BURGER, dissenting.
70
The question presented in this difficult case is whether New York violated the rights of the petitioners under the Fourteenth and Fifteenth Amendments by direct reliance on fixed racial percentages in its 1974 redistricting of Kings County. For purposes of analysis I will treat this in two steps: (1) Is the state legislative action constitutionally permissible absent any special considerations raised by the Federal Voting Rights Act; and (2) does New York's obligation to comply with the Voting Rights Act permit it to use these means to achieve a federal statutory objective?
71
(1)
72
I begin with this Court's holding in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), the first case to strike down a state attempt at racial gerrymandering. If Gomillion teaches anything, I had thought it was that drawing of political boundary lines with the sole, explicit objective of reaching a predetermined racial result cannot ordinarily be sequared with the Constitution. The record before us reveals and it is not disputed that this is precisely what took place here. In drawing up the 1974 reapportionment scheme, the New York Legislature did not consider racial composition as merely one of several political characteristics; on the contrary, race appears to have been the one and only criterion applied.
73
The principal opinion notes that after the 1972 apportionment plan was rejected, New York officials conferred with the Justice Department as to what plan could obtain the Attorney General's approval. One New York official testified that he "got the feeling (from a Justice Department spokesman) . . . that 65 percent would be probably an approved figure." Ante, at 152. Further testimony by that same official is revealing:
74
'Q: So that your reason for dividing the Hassidic community was to effect compliance with the Department of Justice determination, and the minimum standards they impose they appear to impose?
75
'A: That was the sole reason. We spent over a full day right around the clock, attempting to come up with some other type of districting plan that would maintain the Hassidic community as one entity, and I think that is evidenced clearly by the fact that that district is exactly 65 percent, and it's because we went block by block, and didn't go higher or lower than that, in order to maintain as much of the community as possible.' App. 112 (emphasis added).
76
This official also testified that apportionment solutions which would have kept the Hasidic community within a single district, but would have resulted in a 63.4% nonwhite concentration, were rejected for fear that, falling short of 'exactly 65 percent,' they 'would not be acceptable' to the Justice Department. Id., at 115.
77
The words 'racial quota' are emotionally loaded and must be used with caution. Yet this undisputed testimony shows that the 65% figure was viewed by the legislative reapportionment committee as so firm a criterion that even a fractional deviation was deemed impermissible. I cannot see how this can be characterized otherwise than a strict quota approach and I must therefore view today's holding as casting doubt on the clear-cut principles established in Gomillion.
78
(2)
79
My second inquiry is whether the action of the State of New York becomes constitutionally permissible because it was taken to comply with the remedial provisions of the federal Voting Rights Act.
80
In South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) the Court, while recognizing that the 'stringent new remedies' were 'an uncommon exercise of Congressional power' id., at 334-335, 86 S.Ct., at 822, upheld the Act as a 'permissibly decisive' response to 'the extraordinary stratagem of . . . perpetrating voting discrimination in the face of adverse federal court decrees.' Ibid. In Allen v. State Board of Elections, 393 U.S. 544, 569, 89 S.Ct. 817, 834, 22 L.Ed.2d 1 (1969) the Court sustained an application of § 5 to a change from a district to an at-large election of county supervisors because of a potential for 'dilution' of minority voting power which could 'nullify (the) ability to elect the candidate of (one's) choice.' In Allen and Katzenbach the Court acknowledged that the Voting Rights Act contemplated that the Attorney General and the affected state legislatures would be obliged to think in racial terms. In Perkins v. Matthews, 400 U.S. 379, 397, 91 S.Ct. 431, 441, 27 L.Ed.2d 476 (1971) (concurring in judgment), and again in Georgia v. United States, 411 U.S. 526, 541, 93 S.Ct. 1702, 1711, 36 L.Ed.2d 472 (1973) (dissenting opinion), I expressed doubt as to the correctness of Allen but acquiesced in the judgments on the basis of stare decisis.
81
The present case, however, presents a quite different situation. Faced with the straightforward obligation to redistrict so as to avoid 'a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise,' Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 1364, 47 L.Ed.2d 629 (1976), the state legislature mechanically adhered to a plan designed to maintain without tolerance for even a 1.6% deviation a 'nonwhite' population of 65% within several of the new districts. There is no indication whatever that use of this rigid figure was in any way related much less necessary to fulfilling the State's obligation under the Voting Rights Act as defined in Beer.
82
The plurality opinion acknowledges our recent Beer holding by nothing that 'there is no evidence in the record to show whether the 1972 plan increased or decreased the number of senate or assembly districts with substantial nonwhite majorities of 65%,' and by speculating that 'the 1974 revisions may have accomplished nothing more than the restoration of nonwhite voting strength to 1966 levels.' Ante, at 163. It then proceeds to assume that the 1974 reapportionment was undertaken in compliance with Beer. The lack of evidence on this subject is, of course, not surprising, since petitioners' case was dismissed at the pleading stage. If this kind of racial redistricting is to be upheld, however, it shouD at the very least, be done on the basis of record facts, not suppositions. If the Court seriously considers the issue in doubt, I should think that a remand for further factual determinations would be the proper course of action.1 On the present sparse record, however, I cannot find support in the Voting Rights Act for the arbitrary process followed by the New York Legislature.
83
The record is devoid of any evidence that the 65% figure was a reasoned response to the problem of past discrimination.2 It is, rather, clear that under the time pressure of upcoming elections, and 'in an atmosphere of hasty dickering,' 510 F.2d 512, 525, 526 (CA2 1975) (Frankel, J., dissenting), the New York Legislature simply accepted the standard formula from the Department of Justice and treated it as mandatory. Moreover, the formula appears to be based upon factually unsupportable assumptions. For example, it would make no sense to assure nonwhites a majority of 65% in a voting district unless it were assumed that nonwhites and whites vote in racial blocs, and that the blocs vote adversely to, or independently of, one another. Not only is the record in this case devoid of any evidence that such bloc voting has taken or will take place in Kings County, but such evidence as there is points in the opposite direction: We are informed that four out of the five 'safe' (65%) nonwhite districts established by the 1974 plan have since elected white representatives. Brief for Respondent-Intervenors 48.
84
The assumption that 'whites' and 'nonwhites' in the County form homogeneous entities for voting purposes is entirely without foundation. The 'whites' category consists of a veritable galaxy of national origins, ethnic backgrounds, and religious denominations. It simply cannot be assumed that the legislative interests of all 'whites' are even substantially identical. In similar fashion, those described as 'nonwhites' include, in addition to Negroes, a substantial portion of Puerto Ricans. Memorandum of Decision, U. S. Dept. of Justice Nos. V6541-47, July 1, 1974, p. 13 (App. 294).3 The Puerto Rican population, for whose protection the Voting Rights Act was 'triggered' in Kings County, see n. 2, supra, has expressly disavowed any identity of interest with the Negroes, and, in fact, objected to the 1974 redistricting scheme because it did not establish a Puerto Rican controlled district within the county.
85
(3)
86
Although reference to racial composition of a political unit may, under certain circumstances, serve as 'a starting point in the process of shaping a remedy,' Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 25, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971), rigid adherence to quotas, especially in a case like this, deprives citizens such as petitioners of the opportunity to have the legislature make a determination free from unnecessary bias for or against any racial, ethnic, or religious group. I do not quarrel with the proposition that the New York Legislature may choose to take ethnic or community union into consideration in drawing its district lines. Indeed, petitioners are members of an ethnic community which, without deliberate purpose so far as shown on this record, has long been within a single assembly and senate district. While petitioners certainly have no constitutional right to remain unified within a single political district, they do have, in my view, the constitutional right not to be carved up so as to create a voting bloc composed of some other ethnic or racial group through the kind of racial gerrymandering the Court condemned in Gomillion v. Lightfoot.
87
If districts have been drawn in a racially biased manner in the past (which the record does not show to have been the case here) the proper remedy is to reapportion along neutral lines. Manipulating the racial composition of electoral districts to assure one minority or another its 'deserved' representation will not promote the goal of a racially neutral legislature. On the contrary, such racial gerrymandering puts the imprimatur of the State on the concept that race is a proper consideration in the electoral process. 'The vice lies . . . in . . . placing . . . the power of the State behind a racial classification that induces racial prejudice at the polls.' Anderson v. Martin, 375 U.S. 399, 402, 84 S.Ct. 454, 456, 11 L.Ed.2d 430 (1964).
88
The result reached by the Court today in the name of the Voting Rights Act is ironic. The use of a mathematical formula tends to sustain the existence of ghettos by promoting the notion that political clout is to be gained or maintained by marshaling particular racial, ethnic, or religious groups in enclaves. It suggests to the voter that only a candidate of the same race, religion, or ethnic origin can properly represent that voter's interests, and that such candidate can be elected only from a district with a sufficient minority concentration. The device employed by the State of New York and endorsed by the Court today, moves us one step farther away from a truly homogeneous society. This retreat from the ideal of the American 'melting pot' is curiously out of step with recent political history and indeed with what the Court has said and done for more than a decade. The notion that Americans vote in firm blocs has been repudiated in the election of minority members as mayors and legislators in numerous American cities and districts overwhelmingly white. Since I cannot square the mechanical racial gerrymandering in this case with the mandate of the Constitution, I respectfully dissent from the affirmance of the judgment of the Court of Appeals.
1
Section 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c, at the time in question here, provided in pertinent part:
'(W)henever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal office or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General's failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.'
A legislative reapportionment is a 'standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968,' within the meaning of § 5. See infra, at 157-159.
2
See 42 U.S.C. § 1973b(b).
3
The State of New York brought an action to obtain a statutory exemption for the three counties under § 4(a) of the Act, seeking a declaratory judgment that its literacy test had not been used within the 10 years preceding the filing of the suit 'for the purpose or with the effect of denying or abridging the right to vote on account of race or color.' 42 U.S.C. § 1973b(a). After several years of litigation, the District Court for the District of Columbia denied the exemption and ordered the State to comply with the filing requirements of § 5. This Court summarily affirmed. New York ex rel. New York County v. United States, 419 U.S. 888, 95 S.Ct. 166, 42 L.Ed.2d 134 (1974). See 2 Cir., 510 F.2d 512, 516 (CA2 1975).
4
Title 28 C.F.R. § 51.19 (1976) provides:
'Section 5, in providing for submission to the Attorney General as an alternative to seeking a declaratory judgment for the U. S. District Court for the District of Columbia, imposes on the Attorney General what is essentially a judicial function. Therefore, the burden of proof on the submitting authority is the same in submitting changes to the Attorney General as it would be in submitting changes to the District Court for the District of Columbia. The Attorney General shall base his decision on a review of material presented by the submitting authority, relevant information provided by individuals or groups, and the results of any investigation conducted by the Department of Justice. If the Attorney General is satisfied that the submitted change does not have a racially discriminatory purpose or effect, he will not object to the change and will so notify the submitting authority. If the Attorney General determines that the submitted change has a racially discriminatory purpose or effect, he will enter an objection and will so notify the submitting authority. If the evidence as to the purpose or effect of the change is conflicting, and the Attorney General is unable to resolve the conflict within the 60-day period, he shall, consistent with the above-described burden of proof applicable in the District Court, enter an objection and so notify the submitting authority.'
5
The record in this Court contains only part of the materials submitted to and considered by the Attorney General in his review of the 1972 plan. Included in the present record are a memorandum submitted on behalf of the National Association for the Advancement of Colored People and letters from several prominent black and Puerto Rican elected officials, all opposing the plan. Not included in the record are materials defending the plan submitted by the reapportionment committee of the New York Legislature, the State Attorney General, and several state legislators. Brief for United States 8, and n. 9.
The NAACP, the Attorney General, and the court below classified Puerto Ricans in New York together with blacks as a minority group entitled to the protections of the Voting Rights Act. Hereinafter we use the term 'nonwhite' to refer to blacks and Puerto Ricans, although small numbers of other nonwhite groups (such as Orientals) are also include in the nonwhite population statistics.
6
The basis for the Attorney General's conclusion that 'the proscribed effect may exist' as to certain state assembly and senate districts in Kings County was explained in a letter to the New York State authorities as follows:
'Senate district 18 appears to have an abnormally high minority concentration while adjoining minority neighborhoods are significantly diffused into surrounding districts. In the less populous proposed assembly districts, the minority population appears to be concentrated into districts 53, 54, 55 and 56, while minority neighborhoods adjoining those districts are diffused into a number of other districts. . . . (W)e know of no necessity for such configuration and believe other rational alternatives exist.' App. 15.
The Attorney General also objected to the congressional districting in Kings County and to the state legislative districting in New York County. The districting for these seats is not at issue in this litigation.
7
The State was also under pressure from a private suit to compel enactment of new district lines consistent with the views of the Attorney General. NAACP v. New York City Bd. of Elections, 72 Civ. 1460 (SDNY). See 510 F.2d, at 517 n. 6.
8
The 1972 percentages are taken from Table 3, accompanying the memorandum in support of the motions to dismiss of the applicants for intervention, App. 265, except for the 61% figure, which is for a district only partially in Kings County. That figure is taken from the Brief for United States 53, and represents the black and Puerto Rican population rather than all nonwhites. The 1974 percentages are taken from the Interim Report of the Joint Committee on Reapportionment, App. 179-180.
The 1974 plan created nonwhite majorities in two state senate districts that were majority white under the 1972 plan (the 17th and the 23d), but created white majorities in two districts that were majority nonwhite under the 1972 plan (the 16th and the 25th). See Brief for United States 53.
9
Table 3, supra, n. 8, App. 266; Interim Report, supra, n. 8, App. 195; Brief for United States, App. 54. See 510 F.2d at 523 n. 21.
10
Interim Report, supra, n. 8, App. 179; see id., at 181-182.
11
Testimony of Richard S. Scolaro, executive director of the Joint Committee on Reapportionment, at hearing on plaintiff's motion for preliminary injunction, App. 106; see 510 F.2d at 517.
12
Petitioners' motions for a preliminary injunction and summary judgment were denied.
13
Although petitioners did not present this question for review, they argue that the Attorney General is properly a party to this suit because he allegedly caused the state officials to deprive petitioners of their constitutional rights. Brief for Petitioners 53-54, n. 22; Reply Brief for Petitioners 5 n. 1 (filed Sept. 30, 1976). In view of our disposition of the case, we do not reach this issue.
14
In this Court, petitioners state: '(We do not) contend that there is any right constitutional or statutory for permanent recognition of a community in legislative apportionment. Our argument is, rather, that the history of the area demonstrates that there could be and in fact was no reason other than race to divide the community at this time.' Brief for Petitioners 6 n. 6. (Emphasis in original.)
15
The dissent would have found a constitutional violation in 'the drawing of district lines with a central and governing premise that a set number of districts must have a predetermined nonwhite majority of 65% or more in order to ensure nonwhite control in those districts.' The dissent pointed out that neither the Attorney General nor the State of New York would take responsibility for the 65% 'quota,' and argued that there was no showing of a pre-existing wrong which could justify the use of a 'presumptively odious' racial classification. 510 F.2d, at 525, 526 (Frankel, J.).
16
The Equal Protection Clause, contained in § 1 of the Fourteenth Amendment, forbids any State to 'deny to any person within its jurisdiction the equal protection of the laws.' Section 1 of the Fifteenth Amendment provides that '(t)he 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.'
17
The findings of the Commission's 18-month study, contained in its 1968 report, Political Participation 21-39, were endorsed in a statement submitted in the course of the Senate debates by 10 out of 17 Senate Judiciary Committee members, who proposed and successfully supported the critical amendment that extended § 5. The findings were repeatedly referred to during the Senate and House hearings held in 1969 and 1970 in connection with the extension. E.g., Hearings on H.R. 4249, H.R. 5538, and Similar Proposals (Voting Rights Act Extension) before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., 3-4 (1969) (statement of Rep. McCulloch); id., at 17 (testimony of Howard Glickstein, Acting Staff Director, United States Commission on Civil Rights); id., at 150 (testimony of Thomas E. Harris, Associate General Counsel, AFL-CIO); Hearings on S. 818, S. 2456, S. 2507, and Title IV of S. 2029 (Amendments to the Voting Rights Act of 1965) before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st and 2d Sess., 47 (1970) (testimony of Frankie Freeman, member, United States Commission on Civil Rights); id., at 132 (testimony of Joseph L. Rauh, Jr., General Counsel, Leadership Conference on Civil Rights); id., at 427 (statement of Howard Glickstein); id., at 516-518 (testimony of David Norman, Deputy Assistant Attorney General, Civil Rights Division, U. S. Dept. of Justice).
18
Hearings on S. 407, S. 903, S. 1297, S. 1409, and S. 1443 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 124 (1975) (testimony of Nicholas Katzenbach); S.Rep.No.94-295, pp. 15-19 (1975); H.R.Rep.No.94-196, pp. 8-11 (1975), U.S.Code Cong. & Admin. News 1975, p. 774.
19
Petitioners also insist that, because the Attorney General concluded not that the 1972 plan would have a discriminatory effect but only that the State had failed to demonstrate that the plan would not have such an effect, there was insufficient justification for racial redistricting. This argument overlooks the central role of the shift in burden of proof in the congressional effort to combat discriminatory voting laws. Our cases have upheld this shift. As we said in South Carolina v. Katzenbach, 383 U.S. 301, 328, 86 S.Ct. 803, 818, 15 L.Ed.2d 769 (1966): 'After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.' And in affirming the issuance of an injunction against enforcement of a state reapportionment plan for which the State had not demonstrated the absence of a discriminatory effect, the Court stated:
'It is well established that in a declaratory judgment action under § 5, the plaintiff State has the burden of proof. What the Attorney General's regulations do is to place the same burden on the submitting party in a § 5 objection procedure. . . . Any less stringent standard might well have rendered the formal declaratory judgment procedure a dead letter by making available to covered States a far smoother path to clearance.' Georgia v. United States, 411 U.S. 526, 538, 93 S.Ct. 1702, 1709-1710, 36 L.Ed.2d 472 (1973). (Footnote omitted.)
20
See supra, at 160.
21
It is true, of course, that Beer was decided after petitioners moved for summary judgment in the District Court and after the Court of Appeals affirmed the District Court's denial of that motion and dismissal of the action. But while relying on Beer in this Court, petitioners take the position that there are no disputed issues of fact and that their motion for summary judgment should be granted on the basis of the present record. Reply Brief for Petitioners 13-14, 17 (filed Sept. 30, 1976); Tr. of Oral Arg. 70-71.
22
The NAACP, intervenor in this action, submitted census data to the Attorney General showing that roughly 75% of all whites in Kings County but only about 55% of all nonwhites were eligible to vote. App. 263. The NAACP urged that districts without significant nonwhite population majorities would not have nonwhite majorities among eligible voters. See, e.g., id., at 219.
The statistical problems in estimating the nonwhite population of the districts in the 1972 plan provided an additional reason for the Attorney General to ask for an increase in the size of the nonwhite majorities in certain districts. The legislature used the higher of the two sets of estimates, and the actual nonwhite population may have been somewhat lower. See id., at 265.
23
The regulation governing submissions to the Attorney General for review of redistricting plans under § 5 'strongly urges' the submitting authority to include '(v)oting-age population and the number of registered voters before and after the change, by race, for the area to be affected by the change.' 28 CFR § 51.10(b)(6)(ii) (1976).
24
We also note that the white voter who as a result of the 1974 plan is in a district more likely to return a nonwhite representative will be represented, to the extent that voting continues to follow racial lines, by legislators elected from majority white districts. The effect of the reapportionment on whites in districts where nonwhite majorities have been increased is thus mitigated by the preservation of white majority districts in the rest of the county. See Note, 25 Stan.L.Rev. 84, 87 (1972). Of course, if voting does not follow racial lines, the white voter has little reason to complain that the percentage of nonwhites in his district has been increased.
25
Petitioners seek to distinguish Gaffney on the ground that New York's use of racial criteria was not the product of 'reasoned choice' by the state legislature but rather was coerced by federal officials. But we do not think that this otherwise constitutionally permissible plan was rendered unconstitutional merely because New York adopted it to comply with a federal statute.
1
Part IV limits its endorsement of proportional distribution of voting power to instances where the voters are polarized along racial lines and where the State intends 'no racial slur or stigma with respect to' any race. Ante, at 165. I agree that, without such qualifications, the position taken in Part IV plainly would be intolerable. Yet, even as so limited, problems remain that, in my view, merit further consideration. For example, questions concerning the polarization of voters and the motives of the state policymakers may place formidable factfinding responsibilities on the courts. Such responsibilities, I believe, are greatly lessened when the Voting Rights Act is involved. See infra, at 175. Furthermore, I am not at rest with the notion that a 'cognizable discrimination' cannot be found so long as whites 'as a group (are) provided with fair representation . . .' Ante, at 166. While voting may differ from other activities or entitlements in that one group of voters often derives benefits indirectly from a legislator serving a different constituency and to that extent I agree that the adverse effects of a racial division are 'mitigated,' compare ante, at 166 n. 24 with infra, at 178. I am not satisfied that this vicarious benefit fully answers the Hasidim's complaint of injustice. Finally, I have serious doubts that the Court's acceptance of political-party apportionment in Gaffney v. Cummings, 412 U.S. 735, 751-754, 93 S.Ct. 2321, 2330-2332, 37 L.Ed.2d 298 (1973), necessarily applies to apportionment by race. Political affiliation is the keystone of the political trade. Race, ideally, is not.
2
Of course, it could be suggested that the remedial rules upheld in these earlier cases acquired added legitimacy because they generally arose in the form of judicial decrees rather than affirmative legislative or executive action. Arguably, a court-imposed remedy to correct a ripe finding of discrimination should be accorded particular respect. Yet, the role of the judiciary is not decisive. First, as is the case here, even a legislative policy of remedial action can be closely tied to prior discriminatory practices or patterns. See infra, at 177-178. Second, many of the criticisms discussed below that commonly are leveled against the benign use of racial remedies e. g., the potential for arousing race consciousness and the likelihood of imposing disproportionate burdens of compliance upon relatively 'innocent' whites remain relevant regardless of the decisionmaker who imposes the remedial regime. I believe, therefore, that the history of equitable decrees utilizing racial criteria fairly establishes the broad principle that race may play a legitimate role in remedial policies.
3
This phenomenon seems to have arisen with respect to policies affording preferential treatment to women: thus groups dedicated to advancing the legal position of women have appeared before this Court to challenge statutes that facially offer advantages to women and not men. See, e. g., Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). This strategy, one surmises, can be explained on the basis that even good-faith policies favoring women may serve to highlight stereotypes concerning their supposed dependency and helplessness.
4
It would be naive to suppose that racial considerations do not enter into apportionment decisions. A variety of motivations could produce such a reliance upon race: e. g., the desire to injure a race, aconscious decision to distribute voting power among a variety of well-defined racial and ethnic groups or neighborhoods, or an attempt to employ race as a proxy for political affiliation. Cf. Gaffney v. Cummings, 412 U.S., at 753-754, 93 S.Ct., at 2331-2332. The relative difficulty of isolating these motivations in this closeted decisionmaking context, and the further difficulty of deciding which of these motives should be permissible given the realities of the apportionment process, undoubtedly explain § 5's prohibition of practices that either 'have the purpose . . . (or) effect of denying or abridging the right to vote on account of race or color . . ..'
5
I find nothing in the record to suggest and such a proposition seems implausible that the Hasidim bear any unique responsibility for the decisions that led to discriminatory voting practices or effects in Brooklyn. Nor is there any contention that petitioners derived special benefits from the prior discriminatory policies, other than to the extent that the overall white voice countywide was strengthened.
6
It is true that invoking the Attorney General's jurisdiction under the Voting Rights Act does not require an actual finding of purposeful discrimination. Nonetheless, as Mr. Justice WHITE's opinion notes, Congress enacted the Act with 'broadly remedial' objectives in mind, ante, at 156, and the conditions that activate § 4 are those 'which experience had proved were indicative of racial discrimination in voting,' ante, at 156-157. Indeed, these discriminatory effects often would afford probative evidence of purposeful discrimination. See Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-268, 97 S.Ct. 555, 563-565, 50 L.Ed.2d 450 (1977).
7
In this regard, it is important that, notwithstanding the worrisome implications of the intervenors, supra, at 174-175, petitioners themselves do not protest that their treatment under the 1974 plan was motivated by anti-Semitism. See, e. g., Brest, The Supreme Court, 1975 Term, Foreword: In Defense of the Antidiscrimination Principle, 90 Harv.L.Rev. 1, 17 (1976). Indeed, it is undeniable that the Hasidic community is contiguous to several nonwhite neighborhoods, and, therefore, understandably is a candidate for redistricting given the goal of creating 10 viable nonwhite voting majorities.
*
It is unnecessary to consider whether the position of the Department of Justice in this case was required or even authorized by the Voting Rights Act. It is enough to note that the Voting Rights Act and the procedures used to implement it are constitutionally valid, see, e. g., South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769; Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1; Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 and that the procedures followed in this case were consistent with the Act. Congress has established an exclusive forum the District Court for the District of Columbia and provided exclusive standing in the State or political subdivision to raise the issue of substantive compliance with the Act. 42 U.S.C. § 1973l(b) (1970 ed. and Supp. V). That procedure was not invoked by New York here, and the issue of statutory compliance is consequently not properly before us.
1
It is clear to me that Part III of the plurality opinion is singularly out of step with the rationale of Beer and may signal an erosion of that case decided only last Term. In explaining why, absent any facts, it is willing to assume that the 1974 reapportionment was undertaken in compliance with the Voting Rights Act as explicated in Beer, the opinion states:
'In the absence of any evidence regarding nonwhite voting strength under the 1966 apportionment, the creation of substantial nonwhite majorities in approximately 30% of the senate and assembly districts in Kings County was reasonably related to the constitutionally valid statutory mandate of maintaining nonwhite voting strength. The percentage of districts with nonwhite majorities was less than the percentage of nonwhites in the county as a whole (35%).' Ante, at 163.
The rationale of Beer, of course, makes clear that the proportionality of nonwhite districts to the percentage of nonwhites in the county has absolutely no relation to the question of whether or not the Voting Rights Act was complied with. On the contrary, the proportionality rationale was embraced by Mr. Justice White's dissent in that case, 425 U.S., at 143-144, 96 S.Ct., at 1365, and was rejected by the Court.
2
It should be noted that the sole reason that New York, Bronx, and Kings Counties were brought under the sweep of the Voting Rights Act was that ballots in those counties had been prepared only in English and not in Spanish. In light of the large Puerto Rican population in those counties, this was held to be a 'discriminatory test or device.' See Torres v. Sachs, 381 F.Supp. 309 (S.D.N.Y.) (1974).
3
The Puerto Rican population constitutes 10.4% of the entire county population and one-third of the 'nonwhite' population.
| 12
|
430 U.S. 199
97 S.Ct. 1021
51 L.Ed.2d 270
Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Appellant,v.Leon GOLDFARB.
No. 75-699.
Argued Oct. 5, 1976.
Decided March 2, 1977.
Syllabus
Under the Social Security Act survivors' benefits based on the earnings of a deceased husband covered by the Act are payable to his widow regardless of dependency, but under 42 U.S.C. § 402(f)(1)(D) such benefits on the basis of a deceased wife covered by the Act are payable to her widower only if he was receiving at least half of his support from her. In a suit challenging these provisions, a three-judge District Court held that the different treatment of men and women mandated by § 402(f)(1)(D) constituted invidious discrimination against female wage earners by affording them less protection for their surviving spouses than is provided to male employees. Held: The judgment is affirmed. Pp. 204-217; 217-227.
D.C., 396 F.Supp. 308, affirmed.
Mr. Justice BRENNAN, joined by Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice POWELL, concluded that the gender-based distinction created by § 402(f)(1)(D) violates the Due Process Clause of the Fifth Amendment, Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514; Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583. Pp. 204-217.
(a) Such distinction, which results in the efforts of female workers required to pay social security taxes producing less protection for their spouses than is produced by the efforts of male workers, is constitutionally forbidden at least when supported by no more substantial justification than 'archaic and overbroad' generalizations or 'old notions,' such as 'assumptions as to dependency,' that are more consistent with 'the role-typing society has long imposed' than with contemporary reality. Pp. 204-207.
(b) Equal protection analysis here cannot center solely on the distinction drawn between widowers and widows but must be focused as well on the gender-based discrimination against covered female wage earners. Pp. 207-209.
(c) The fact that a covered employee's interest in future social security benefits is 'noncontractual' does not preclude any claim of equal protection denial, but benefits 'directly related to years worked and amount earned by a covered employee, and not to the needs of the beneficiaries directly . . . must be distributed according to classifications which do not without sufficient justification differentiate among covered employees solely on the basis of sex,' Wiesenfeld, supra, 420 U.S. at 647, 95 S.Ct. at 1232. Pp. 210-212.
(d) It appears from § 402(f)(1)(D)'s phrasing and legislative history as well as from the general scheme of the Old-Age, Survivors, and Disability Insurance benefits program, that the differential treatment of nondependent widows and widowers results, not from a deliberate congressional intention to remedy the arguably greater needs of the former, but rather from an intention to aid the dependent spouses of deceased wage earners, coupled with a presumption that wives are usually dependent. The only justification for a classification based on this latter presumption is the unverified assumption that it would save the Government time, money, and effort simply to pay benefits to all widows rather than to require proof of dependency of both sexes, and such an assumption does not suffice to justify a gender-based discrimination in the distribution of employment-related benefits. Pp. 212-217.
Mr. Justice STEVENS concluded that the relevant discrimination is against surviving male spouses, rather than against deceased female wage earners, that such discrimination is merely the accidental by-product of a traditional way of thinking about females, and that something more than accident is necessary to justify under the Fifth Amendment the disparate treatment of persons who have as strong a claim to equal treatment as do similarly situated surviving spouses. Pp. 217-224.
Keith A. Jones, Washington, D. C., for appellant.
Ruth Bader Ginsburg, New York City, for appellee.
Mr. Justice BRENNAN announced the judgment of the Court and delivered an opinion in which Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice POWELL joined.
1
Under the Federal Old-Age, Survivors, and Disability Insurance Benefits (OASDI) program, 42 U.S.C. §§ 401-431 (1970 ed. and Supp. V), survivors' benefits based on the earnings of a deceased husband covered by the Act are payable to his widow. Such benefits on the basis of the earnings of a deceased wife covered by the Act are payable to the widower, however, only if he 'was receiving at least one-half of his support' from his deceased wife.1 The question in this case is whether this gender-based distinction violates the Due Process Clause of the Fifth Amendment.
2
A three-judge District Court for the Eastern District of New York held that the different treatment of men and women mandated by § 402(f)(1)(D) constituted invidious discrimination against female wage earners by affording them less protection for their surviving spouses than is provided to male employees, D.C., 396 F.Supp. 308 (1975).2 We noted probable jurisdiction. 424 U.S. 906, 96 S.Ct. 1099, 47 L.Ed.2d 310 (1976). We affirm.
3
* Mrs. Hannah Goldfarb worked as a secretary in the New York City public school system for almost 25 years until her death in 1968. During that entire time she paid in full all social security taxes required by the Federal Insurance Contributions Act, 26 U.S.C. §§ 3101-3126. She was survived by her husband, Leon Goldfarb, now aged 72, a retired federal employee. Leon duly applied for widower's benefits. The application was denied with the explanation that
4
'You do not qualify for a widower's benefit because you do not meet one of the requirements for such entitlement. This requirement is that you must have been receiving at least one-half support from your wife when she died.'3
5
The District Court declared § 402(f)(1)(D) unconstitutional primarily on the authority of Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), stating:
6
'(Section 402(f)(1)(D)) and its application to this plaintiff, 'deprive women of protection for their families which men receive as a result of their employment.' Weinberger v. Wiesenfeld, 420 U.S. 636, 645, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975). See also Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973).
7
'Whatever may have been the ratio of contribution to family expenses of the Goldfarbs while they both worked, Mrs. Goldfarb was entitled to the dignity of knowing that her social security tax would contribute to their joint welfare when the couple or one of them retired and to her husband's welfare should she predecease him. She paid taxes at the same rate as men and there is not the slightest scintilla of support for the proposition that working women are less concerned about their spouses' welfare in old age than are men.' 396 F.Supp., at 308-309.
II
8
The gender-based distinction drawn by § 402(f)(1)(D) burdening a widower but not a widow with the task of proving dependency upon the deceased spouse presents an equal protection question indistinguishable from that decided in Weinberger v. Wiesenfeld, supra. That decision and the decision in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), plainly require affirmance of the judgment of the District Court.4
9
The statutes held unconstitutional in Frontiero provided increased quarters allowance and medical and dental benefits to a married male member of the uniformed Armed Services whether or not his wife in fact depended on him, while a married female service member could only receive the increased benefits if she in fact provided over one-half of her husband's support. To justify the classification, the Secretary of Defense argued: '(A)s an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands rarely are dependent upon their wives. Thus, . . . Congress might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact.' 411 U.S. at 688-689, 93 S.Ct. at 1771. But Frontiero concluded that, by according such differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statute violated the Fifth Amendment. See Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971); Stanley v. Illinois, 405 U.S. 645, 656-657, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551 (1972); cf. Schlesinger v. Ballard, 419 U.S. 498, 506-507, 95 S.Ct. 572, 576, 577, 42 L.Ed.2d 610 (1975).
10
Weinberger v. Wiesenfeld, like the instant case, presented the question in the context of the OASDI program. There the Court held unconstitutional a provision that denied father's insurance benefits to surviving widowers with children in their care, while authorizing similar mother's benefits to similarly situated widows. Paula Wiesenfeld, the principal source of her family's support, and covered by the Act, died in childbirth, survived by the baby and her husband Stephen. Stephen applied for survivors' benefits for himself and his infant son. Benefits were allowed the baby under 42 U.S.C. § 402(d) (1970 ed., Supp. III), but denied the father on the ground that 'mother's benefits' under § 402(g) were available only to women. The Court reversed, holding that the gender-based distinction made by § 402(g) was 'indistinguishable from that invalidated in Frontiero,' 420 U.S., at 642, 95 S.Ct., at 1230, and therefore:
11
'(While) the notion that men are more likely than women to be the primary supporters of their spouses and children is not entirely without empirical support, . . . such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support.
12
'Section 402(g) clearly operates, as did the statutes invalidated by our judgment in Frontiero, to deprive women of protection for their families which men receive as a result of their employment. Indeed, the classification here is in some ways more pernicious. . . . (I)n this case social security taxes were deducted from Paula's salary during the years in which she worked. Thus, she not only failed to receive for her family the same protection which a similarly situated male worker would have received, but she also was deprived of a portion of her own earnings in order to contribute to the fund out of which benefits would be paid to others.' Id., at 645, 95 S.Ct., at 1232.
13
Precisely the same reasoning condemns the gender-based distinction made by § 402(f)(1)(D) in this case. For that distinction, too, operates 'to deprive women of protection for their families which men receive as a result of their employment': social security taxes were deducted from Hannah Goldfarb's salary during the quarter century she worked as a secretary, yet, in consequence of § 402(f)(1)(D), she also 'not only failed to receive for her (spouse) the same protection which similarly situated male worker would have received (for his spouse) but she also was deprived of a portion of her own earnings in order to contribute to the fund out of which benefits would be paid to others.' Wiesenfeld thus inescapably compels the conclusion reached by the District Court that the gender-based differentiation created by § 402(f)(1)(D) that results in the efforts of female workers required to pay social security taxes producing less protection for their spouses than is produced by the efforts of men is forbidden by the Constitution, at least when supported by no more substantial justification than 'archaic and overbroad' generalizations, Schlesinger v. Ballard, supra, 419 U.S., at 508, 95 S.Ct., at 577, or "old notions," Stanton v. Stanton, 421 U.S. 7, 14, 95 S.Ct. 1373, 1377, 43 L.Ed.2d 688 (1975), such as 'assumptions as to dependency,' Weinberger v. Wiesenfeld, supra, 420 U.S. at 645, 95 S.Ct. at 1231, that are more consistent with 'the role-typing society has long imposed,' Stanton v. Stanton, supra, 421 U.S. at 15, 95 S.Ct. at 1378, than with contemporary reality. Thus § 402(f)(1)(D) "(b) y providing dissimilar treatment for men and women who are . . . similarly situated . . . violates the (Fifth Amendment).' Reed v. Reed, 404 U.S. 71, 77, 92 S.Ct. 251, 254, 30 L.Ed.2d 225.' Weinberger v. Wiesenfeld, supra, 420 U.S. at 653, 95 S.Ct. at 1236.
III
14
Appellant, however, would focus equal protection analysis, not upon the discrimination against the covered wage earning female, but rather upon whether her surviving widower was unconstitutionally discriminated against by burdening him but not a surviving widow with proof of dependency. The gist of the argument is that, analyzed from the perspective of the widower, 'the denial of benefits reflected the congressional judgment that aged widowers as a class were sufficiently likely not to be dependent upon their wives that it was appropriate to deny them benefits unless they were in fact dependent.' Brief for Appellant 12.
15
But Weinberger v. Wiesenfeld rejected the virtually identical argument when appellant's predecessor argued that the statutory classification there attacked should be regarded from the perspective of the prospective beneficiary and not from that of the covered wage earner. The Secretary in that case argued that the 'pattern of legislation reflects the considered judgment of Congress that the 'probable need' for financial assistance is greater in the case of a widow, with young children to maintain, than in the case of similarly situated males.' Brief for Appellant in No. 73-1892, O.T. 1974, p. 14. The Court, however, analyzed the classification from the perspective of the wage earner and concluded that the classification was unconstitutional because 'benefits must be distributed according to classifications which do not without sufficient justification differentiate among covered employees solely on the basis of sex.' 420 U.S., at 647, 95 S.Ct. at 1233. Thus, contrary to appellant's insistence, Brief for Appellant 12, Wiesenfeld is 'dispositive here.'
16
From its inception, the social security system has been a program of social insurance. Covered employees and their employers pay taxes into a fund administered distinct from the general federal revenues to purchase protection against the economic consequences of old age, disability, and death. But under § 402(f)(1)(D) female insureds received less protection for their spouses solely because of their sex. Mrs. Goldfarb worked and paid social security taxes for 25 years at the same rate as her male colleagues, but because of § 402(f)(1)(D) the insurance protection received by the males was broader than hers. Plainly then § 402(f)(1)(D) disadvantages women contributors to the social security system as compared to similarly situated men.5 The section then 'impermissibly discriminates against a female wage earner because it provides her family less protection than it provides that of a male wage earner, even though the family needs may be identical.' Wiesenfeld, supra, at 654-655, 95 S.Ct. at 1236 (Powell, J., concurring). In a sense, of course, both the female wage earner and her surviving spouse are disadvantaged by operation of the statute, but this is because 'Social Security is designed . . . for the protection of the family,' 420 U.S., at 654, 95 S.Ct., at 1236 (Powell, J., concurring),6 and the section discriminates against one particular category of family that in which the female spouse is a wage earner covered by social security.7 Therefore decision of the equal protection challenge in this case cannot focus solely on the distinction drawn between widowers and widows but, as Wiesenfeld held, upon the gender-based discrimination against covered female wage earners as well.8
IV
17
Appellant's emphasis upon the sex-based distinction between widow and widower as recipients of benefits rather than that between covered female and covered male employees also emerges in his other arguments. These arguments have no merit.
A.
18
We accept as settled the proposition argued by appellant that Congress has wide latitude to create classifications that allocate noncontractual benefits under a social welfare program. Weinberger v. Salfi, 422 U.S. 749, 776-777, 95 S.Ct. 2457, 2472, 45 L.Ed.2d 522 (1975); Flemming v. Nestor, 363 U.S. 603, 609-610, 80 S.Ct. 1367, 1371-1372, 4 L.Ed.2d 1435 (1960). It is generally the case, as said id., at 611, 80 S.Ct., at 1373:
19
'Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as (Social Security), we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.'
20
See also Weinberger v. Salfi, supra, at 768-770, 95 S.Ct. at 2468-2469; Richardson v. Belcher, 404 U.S. 78, 81, 84, 92 S.Ct. 254, 258, 30 L.Ed.2d 231 (1971); Dandridge v. Williams, 397 U.S. 471, 485-486, 90 S.Ct. 1153, 1161-1162 (1970).
21
But this 'does not, of course, immunize (social welfare legislation) from scrutiny under the Fifth Amendment.' Richardson v. Belcher, supra, at 81, 92 S.Ct. at 257. The Social Security Act is permeated with provisions that draw lines in classifying those who are to receive benefits. Congressional decisions in this regard are entitled to deference as those of the institution charged under our scheme of government with the primary responsibility for making such judgments in light of competing policies and interests. But '(t)o withstand constitutional challenge, . . . classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives.' Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976).9 Such classifications, however, have frequently been revealed on analysis to rest only upon 'old notions' and 'archaic and overbroad' generalizations, Stanton v. Stanton, 421 U.S., at 14, 95 S.Ct. at 1377; Schlesinger v. Ballard, 419 U.S., at 508, 95 S.Ct. at 577; cf. Mathews v. Lucas, 427 U.S. 495, 512-513, 96 S.Ct. 2755, 2765-2766, 49 L.Ed.2d 651 (1976), and so have been found to offend the prohibitions against denial of equal protection of the law. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Stanton v. Stanton, supra; Craig v. Boren, supra. See also Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).
22
Therefore, Wiesenfeld, supra, at 646-647, 95 S.Ct. at 1232, expressly rejected the argument of appellant's predecessor, relying on Flemming v. Nestor, that the 'noncontractual' interes of a covered employee in future social security benefits precluded any claim of denial of equal protection. Rather, Wiesenfeld held that the fact that the interest is 'noncontractual' does not mean that 'a covered employee has no right whatever to be treated equally with other employees as regards the benefits which flow from his or her employment,' nor does it 'sanction differential protection for covered employees which is solely gender based.' 420 U.S., at 646, 95 S.Ct. at 1232. On the contrary, benefits 'directly related to years worked and amount earned by a covered employee, and not to the need of the beneficiaries directly,' like the employment-related benefits in Frontiero, 'must be distributed according to classifications which do not without sufficient justification differentiate among covered employees solely on the basis of sex.' 420 U.S., at 647, 95 S.Ct. at 1233.
B
23
Appellant next argues that Frontiero and Wiesenfeld should be distinguished as involving statutes with different objectives than § 402(f)(1)(D). Rather than merely enacting presumptions designed to save the expense and trouble of determining which spouses are really dependent, providing benefits to all widows, but only to such widowers as prove dependency, § 402(f)(1)(D), it is argued, rationally defines different standards of eligibility because of the differing social welfare needs of widowers and widows. That is, the argument runs, Congress may reasonably have presumed that nondependent widows, who receive benefits, are needier than nondependent widowers, who do not, because of job discrimination against women (particularly older women), see Kahn v. Shevin, 416 U.S. 351, 353-354, 94 S.Ct. 1734, 1736-1737, 40 L.Ed.2d 189 (1974), and because they are more likely to have been more dependent on their spouses. See Wiesenfeld, 420 U.S., at 645, 95 S.Ct., at 1231; Kahn v. Shevin, supra, at 354 n. 7, 94 S.Ct. at 1737.10
24
But 'inquiry into the actual purposes' of the discrimination, Wiesenfeld, supra, at 648, 95 S.Ct. at 1233, proves the contrary. First, § 402(f)(1)(D) itself is phrased in terms of dependency, not need. Congress chose to award benefits, not to widowers who could prove that they are needy, but to those who could prove that they had been dependent on their wives for more than one-half of their support. On the face of the statute, dependency, not need, is the criterion for inclusion.
25
Moreover, the general scheme of OASDI shows that dependence on the covered wage earner is the critical factor in determining beneficiary categories.11 OASDI is intended to insure covered wage earners and their families against the economic and social impact on the family normally entailed by loss of the wage earner's income due to retirement, disability, or death, by providing benefits to replace the lost wages. Cf. Jimenez v. Weinberger, 417 U.S. 628, 633-634, 94 S.Ct. 2496, 2500, 41 L.Ed.2d 363 (1974). Thus, benefits are not paid, as under other welfare programs, simply to categories of the population at large who need economic assistance, but only to members of the family of the insured wage earner.12 Moreover, every family member other than a wife or widow is eligible for benefits only if a dependent of the covered wage earner.13 This accords with the system's general purpose; one who was not dependent to some degree on the covered wage earner suffers no economic loss when the wage earner leves the work force. Thus the overall statutory scheme makes actual dependency the general basis of eligibility for OASDI benefits, and the statute, in omitting that requirement for wives and widows, reflects only a presumption that they are ordinarily dependent. At all events, nothing whatever suggests a reasoned congressional judgment that nondependent widows should receive benefits because they are more likely to be needy than nondependent widowers.
26
Finally, the legislative history of § 402(f)(1)(D) refutes appellant's contention. The old-age provisions of the original Social Security Act, 49 Stat. 622, provided pension benefits only to the wage earner himself, with a lump-sum payment to his estate under certain circumstances.14 Wives' and widows' benefits were first provided when coverage was extended to other family members in 1939. Social Security Act Amendments of 1939, 53 Stat. 1360, 1364-1366. The general purpose of the amendments was 'to afford more adequate protection to the family as a unit.' H.R.Rep. No. 728, 76th Cong., 1st Sess., 7 (1939). (Emphasis supplied.) The House Ways and Means Committee criticized the old lumpsum payment because it 'make(s) payments to the estate of a deceased person regardless of whether or not he leaves dependents.' Bid. The Social Security Board, which had initiated the amendments in a report transmitted by the President to Congress, recommended the adoption of survivors' benefits because '(t)he payment of monthly benefits to widows and orphans, who are the two chief classes of dependent survivors, would furnish more significant protection than does the payment of lumpsum benefits.' H.R.Doc. No. 110, 76th Cong., 1st Sess., 7 (1939).15 In addition to recommending survivors' benefits, the Board suggested the extension of old-age pension benefits 'for the aged dependent wife of the retired worker.'16 Id., at 6. On the Senate floor, Senator Harrison, the principal proponent of the amendments, criticized the then-existing system of benefits because under it 'no regard is had as to whether (the covered wage earner) has a dependent wife, or whether he dies leaving a child, widow, or parents.' 84 Cong.Rec. 8827 (1939). There is no indication whatever in any of the legislative history that Congress gave any attention to the specific case of nondependent widows, and found that they were in need of benefits despite their lack of dependency, in order to compensate them for disadvantages caused by sex discrimination. There is every indication that, as Wiesenfeld recognized, 420 U.S., at 644, 95 S.Ct. at 1231, 'the framers of the Act legislated on the 'then generally accepted presumption that a man is responsible for the support of his wife and children.' D. Hoskins & L. Bixby, Women and Social Security: Law and Policy in Five Countries, Social Security Administration Research Report No. 42, p. 77 (1973).'17
27
Survivors' and old-age benefits were not extended to husbands and widowers until 1950. 64 Stat. 483, 485. The legislative history of this provision also demonstrates that Congress did not create the disparity between nondependent widows and widowers with a compensatory purpose. The impetus for change came from the Advisory Council on Social Security, which recommended benefits for 'the aged, dependent husband . . . (and) widower.' The purpose of this recommendation was '(t)o equalize the protection given to the dependents of women and men' because '(u)nder the present program, insured women lack some of the rights which insured men can acquire.' Advisory Council on Social Security, Recommendations for Social Security Legislation, S.Doc. No. 208, 80th Cong., 2d Sess., 38 (1949). (Emphasis supplied in part.) It is clear from the report that the Advisory Council assumed that the provision of benefits to dependent husbands and widowers was the equivalent of the provision of benefits to wives and widows under the previous statute, and not a lesser protection deliberately made because of lesser need. Although the original bill, H.R. 6000, that became the Social Security Act Amendments of 1950 did not contain a provision for husbands' and widowers' benefits, the Senate Finance Committee added it, because 'the committee believes that protection given to dependents of women and men should be made more comparable.' S.Rep. No. 1669, 81st Cong., 2d Sess., 28 (1950), U.S.Code Cong. Service 1950, pp. 3287, 3317. In 1950, as in 1939, there was simply no indication of an intention to create a differential treatment for the benefit of nondependent wives.
28
We conclude, therefore, that the differential treatment of nondependent widows and widowers results not, as appellant asserts, from a deliberate congressional intention to remedy the arguably greater needs of the former, but rather from an intention to aid the dependent spouses of deceased wage earners, coupled with a presumption that wives are usually dependent. This presents precisely the situation faced in Frontiero and Wiesenfeld. The only conceivable justification for writing the presumption of wives' dependency into the statute is the assumption, not verified by the Government in Frontiero, 411 U.S., at 689, 93 S.Ct. at 1771, or here, but based simply on 'archaic and overbroad' generalizations, Schlesinger v. Ballard, 419 U.S., at 508, 95 S.Ct. at 577, that it would save the Government time, money, and effort simply to pay benefits to all widows, rather than to require proof of dependency of both sexes.18 We held in Frontiero, and again in Wiesenfeld, and therefore hold again here, that such assumptions do not suffice to justify a gender-based discrimination in the distribution of employment-related benefits.
29
Affirmed.
30
Mr. Justice STEVENS, concurring in the judgment.
31
Although my conclusion is the same, my appraisal of the relevant discrimination and my reasons for concluding that it is unjustified, are somewhat different from those expressed by Mr. Justice BRENNAN.
32
First, I agree with Mr. Justice REHNQUIST that the constitutional question raised by this plaintiff requires us to focus on his claim for benefits rather than his deceased wife's tax obligation. She had no contractual right to receive benefits or to control their payment; moreover, the payments are not a form of compensation for her services.1 At the same salary level, all workers must pay the same tax, whether they are male or female, married or single, old or young, the head of a large family or a small one. The benefits which may ultimately become payable to them or to a wide variety of beneficiaries including their families, their spouses, future spouses, and even their ex-wives vary enormously, but such variations do not convert a uniform tax obligation into an unequal one. The discrimination against this plaintiff would be the same if the benefits were funded from general revenues. In short, I am persuaded that the relevant discrimination in this case is against surviving male spouses, rather than against deceased female wage earners.2
33
Second, I also agree with Mr. Justice REHNQUIST that a classification which treats certain aged widows3 more favorably than their male counterparts is not 'invidious.' Such a classification does not imply that males are inferior to females, cf. Mathews v. Lucas, 427 U.S. 495, 516, 96 S.Ct. 2755, 2767, 49 L.Ed.2d 651 (Stevens, J., dissenting); does not condemn a large class on the basis of the misconduct of an unrepresentative few, cf. Craig v. Boren, 429 U.S. 190, 211, 97 S.Ct. 451, 464, 50 L.Ed.2d 397 (Stevens, J., concurring); and does not add to the burdens of an already disadvantaged discrete minority. Cf. Hampton v. Mow Sun Wong, 426 U.S. 88, 102, 96 S.Ct. 1895, 1904, 48 L.Ed.2d 495. It does, however, treat similarly situated persons differently solely because they are not of the same sex.
34
Third, Mr. Justice REHNQUIST correctly identifies two hypothetical justifications for this discrimination that are comparable to those the Court found acceptable in Mathews v. Lucas, supra, and Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189. Neither the 'administrative convenience' rationale of Lucas, nor the 'policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden,' Kahn v. Shevin, supra, 416 U.S. at 355, 94 S.Ct. at 1737, can be described as wholly irrational. Nevertheless, I find both justifications unacceptable in this case.
35
The administrative-convenience rationale rests on the assumption that the cost of providing benefits to nondependent widows is justified by eliminating the burden of requiring those who are dependent to establish that fact. Mr. Justice REHNQUIST'S careful analysis of the relevant data, see post, at 238-239, n. 7, demonstrates that at present only about 10% of the married women in the relevant age bracket are nondependent. Omitting any requirement that widows establish dependency therefore expedites the processing of about 90% of the applications. This convenience must be regarded as significant even though procedures could certainly be developed to minimize the burden.4
36
But what is the offsetting cost that Congress imposed on the Nation in order to achieve this administrative convenience? Assuming that Congress intended only to benefit dependent spouses, and that it has authorized payments to nondependent widows to save the cost of administering a dependency requirement for widows, it has paid a truly staggering price for a relatively modest administrative gain: The cost of payments to the hundreds of thousands of widows who are not within the described purpose of the statute is perhaps $750 million a year.5 The figures for earlier years were presumably smaller, but must still have been large in relation to the possible administrative savings. It is inconceivable that Congress would have authorized such large expenditures for an administrative purpose without the benefit of any cost analysis, or indeed, without even discussing the problem. I am therefore convinced that administrative convenience was not the actual reason for the discrimination.6
37
It is also clear that the disparate treatment of widows and widowers is not the product of a conscious purpose to redress the 'legacy of economic discrimination' against females. Kahn v. Shevin, supra, at 359, 94 S.Ct., at 1739 (Brennan, J., dissenting). The widows who benefit from the disparate treatment are those who were sufficiently successful in the job market to become nondependent on their husbands. Such a widow is the least likely to need special benefits. The widow most in need is the one who is '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.' 416 U.S., at 354, 94 S.Ct., at 1737. To accept the Kahn justification we must presume that Congress deliberately gave a special benefit to those females least likely to have been victims of the historic discrimination discussed in Kahn. Respect for the legislative process precludes the assumption that the statutory discrimination is the product of such irrational lawmaking.
38
The step-by-step evolution of this statutory scheme included a legislative decision to provide benefits for all widows and a separate decision to provide benefits for dependent widowers. Admittedly, each of these separate judgments has a rational and benign purpose. But I consider it clear that Congress never focused its attention on the question whether to divide nondependent surviving spouses into two classes on the basis of sex.7 The history of the statute is entirely consistent with the view that Congress simply assumed that all widows should be regarded as 'dependents' in some general sense, even though they could not satisfy the statutory support test later imposed on men.8 It is fair to infer that habit, rather than analysis or actual reflection, made it seem acceptable to equate the terms 'widow' and 'dependent surviving spouse.' That kind of automatic reflex is far different from either a legislative decision to favor females in order to compensate for past wrongs, or a legislative decision that the administrative savings exceed the cost of extending benefits to nondependent widows.
39
I am therefore persuaded that this discrimination against a group of males is merely the accidental byproduct of a traditional way of thinking about females. I am also persuaded that a rule which effects an unequal distribution of economic benefits solely on the basis of sex is sufficiently questionable that 'due process requires that there be a legitimate basis for presuming that the rule was actually intended to serve (the) interest' put forward by the Government as its justification. See Hampton v. Mow Sun Wong, 426 U.S., at 103, 96 S.Ct., at 1905.9 In my judgment, something more than accident is necessary to justify the disparate treatment of persons who have as strong a claim to equal treatment as do similarly situated surviving spouses.
40
But if my judgment is correct, what is to be said about Kahn v. Shevin? For that case involved a discrimination between surviving spouses which originated in 1885; a discrimination of that vintage cannot reasonably be supposed to have been motivated by a decision to repudiate the 19th century presumption that females are inferior to males.10 It seems clear, therefore, that the Court upheld the Florida statute on the basis of a hypothetical justification for the discrimination which had nothing to do with the legislature's actual motivation. On this premise, I would be required to regard Kahn as controlling in this case, were it not for the fact that I believe precisely the same analysis applies to Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514.
41
In Wiesenfeld, the Court rejected an attempt to use 'mere recitation of a benign, compensatory purpose' as 'an automatic shield,' Id., at 648, 95 S.Ct. 1233, for a statute which was actually based on "archaic and overbroad' generalization(s),' id., at 643, 95 S.Ct., at 1230. In Wiesenfeld, as in this case, the victims of the statutory discrimination were widowers. They were totally excluded from eligibility for benefits available to similarly situated widows, just as in this case nondependent widowers are totally excluded from eligibility for benefits payable to nondependent widows. The exclusion in Wiesenfeld was apparently the accidental byproduct of the same kind of legislative process that gave rise to Kahn and to this case. If there is inconsistency between Kahn and Wiesenfeld, as I believe there is, it is appropriate to follow the later unanimous holding rather than the earlier, sharply divided decision. And if the cases are distinguishable, Wiesenfeld is closer on its facts to this case than is Kahn.
42
For these reasons, and on the authority of the holding in Wiesenfeld, I concur in the Court's judgment.
43
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice BLACKMUN join, dissenting.
44
In light of this Court's recent decisions beginning with Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), one cannot say that there is no support in our cases for the result reached by the Court. One can, however, believe as I do that careful consideration of these cases affords more support for the opposite result than it does for that reached by the Court. Indeed, it seems to me that there are two largely separate principles which may be deduced from these cases which indicate that the Court has reached the wrong result.
45
The first of these principles is that cases requiring heightened levels of scrutiny for particular classifications under the Equal Protection Clause, which have originated in areas of the law outside of the field of social insurance legislation, will not be uncritically carried over into that field. This does not mean that the phrase 'social insurance' is some sort of magic phrase which automatically mutes the requirements of the equal protection component of the Fifth Amendment. But it does suggest that in a legislative system which distributes benefit payments among literally millions of people there are at least two characteristics which are not found in many other types of statutes. The first is that the statutory scheme will typically have been expanded by amendment over a period of years so that it is virtually impossible to say that a particular amendment fits with mathematical nicety into a carefully conceived overall plan for payment of benefits. The second is that what in many other areas of the law will be relatively low-level considerations of 'administrative convenience' will in this area of the law bear a much more vital relation to the overall legislative plan because of congressional concern for certainty in determination of entitlement and promptness in payment of benefits.
46
The second principle upon which I believe this legislative classification should be sustained is that set forth in our opinion in Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). The effect of the statutory scheme is to make it easier for widows to obtain benefits than it is for widowers, since the former qualify automatically while the latter must show proof of need. Such a requirement in no way perpetuates or exacerbates the economic disadvantage which has led the Court to conclude that gender-based discrimination must meet a different test from other types of classifications. It is, like the property tax exemption to widows in Kahn, a differing treatment which "rest(s) upon some ground of difference having a fair and substantial relation to the object of the legislation." Id., at 355, 94 S.Ct. at 1737.
47
* Both Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), and Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), are undoubtedly relevant to the decision of this case, but the plurality overstates that relevance when it says that these two cases 'plainly require affirmance of the judgment of the District Court.' Ante, at 204. The disparate treatment of widows and widowers by this Act is undoubtedly a gender-based classification, but this is the beginning and not the end of the inquiry. In the case of classifications based on legitimacy, and in the case of irrebuttable presumptions, constitutional doctrine which would have invalidated the same distinctions in other contexts has been held not to require that result when they were used within comprehensive schemes for social insurance. The same result should obtain in the case of constitutional principles dealing with gender-based distinctions.
48
In Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), the Court held that a Louisiana statute which allowed legitimate but not illegitimate children to recover for the wrongful death of their mother violated the Equal Protection Clause of the Fourteenth Amendment. Another Louisiana statute was challenged on similar grounds in Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972). The statute in Weber was defended on the ground that it did not preclude entirely the recovery of workmen's compensation by illegitimate children, since acknowledged illegitimates were permitted to recover on the same basis as legitimate children. The Court rejected that distinction, however, and held that this statute also violated the Equal Protection Clause.
49
Two Terms later we held invalid under the Fifth Amendment a portion of the child's benefits provisions of the Social Security Act. The challenged provision flatly excluded one class of illegitimate children notwithstanding their actual dependence upon a disabled parent, while granting benefits to other classes of illegitimates and to legitimates on the basis of demonstrated or presumed dependence upon such a parent. Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974). We relied on our earlier decision in Weber, supra, to reach this result.
50
Last Term, however, in Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976), we upheld the portion of these same child's benefits provisions which conclusively presume dependency for all but a specified group of illegitimate children. This use of illegitimacy to define a group required to present proof of dependency was held not to deny equal protection to those singled out.
51
In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), we held that Illinois might not under the equal protection guarantee of the Fourteenth Amendment deny a hearing on parental fitness to an unwed father when such a hearing was granted to all other parents whose custody of their children was challenged. In Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), we likewise held invalid school board regulations requiring pregnant school teachers to take unpaid maternity leave commencing four or five months before their expected birth.
52
Yet, the Term following LaFleur, we decided Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), in which a three-judge District Court had held invalid a duration-of-relationship requirement for surviving wives in order that they might receive benefits under the Social Security Act. The District Court relied on Stanley and LaFleur, but we declined to extend those cases into the area of a complex social insurance scheme such as this Act, saying:
53
'We think that the District Court's extension of the holdings of Stanley, Vlandis (v. Kline, 412 U.S. 441, 91 S.Ct. 42, 27 L.Ed.2d 50) and LaFleur to the eligibility requirement in issue here would turn the doctrine of those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution.' 422 U.S., at 772, 95 S.Ct. at 2470.
54
The Court's recent treatment of gender-based discrimination begins with Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), in which the Court invalidated a provision of the Idaho probate code which contained an across-the-board flat preference for men over women as putative administrators of the estate of a decedent. The following Term we relied on the equal protection component of the Fifth Amendment to hold invalid an Act of Congress relating to military pay which allowed a male member of the uniformed services to claim his wife as a dependent without any showing of such a fact, but which required a female member to show that her husband was in fact dependent on her before she could make such a claim. The consequences of spousal dependency were increased fringe benefits which had been provided in an effort to make the uniformed services competitive with business and industry. Frontiero v. Richardson, supra, 411 U.S., at 679, 93 S.Ct., at 1766.
55
The next Term, however, we refused to invalidate at the behest of a male property taxpayer a provision of Florida law which allowed widows, but not widowers, an exemption from property taxation in the amount of $500. Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). Weinberger v. Wiesenfeld, decided one year later, relied on Frontiero, supra, in holding invalid a section of the Social Security Act which allowed benefits to a surviving widow but flatly denied them to a surviving widower. The Court said:
56
'Since the gender-based classification of § 402(g) cannot be explained as an attempt to provide for the special problems of women, it is indistinguishable from the classification held invalid in Frontiero. Like the statutes there, '(b)y providing dissimilar treatment for men and women who are . . . similarly situated, the challenged section violates the (Due Process) Clause.' Reed v. Reed, 404 U.S. 71, 77, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971).' 420 U.S., at 653, 95 S.Ct. at 1236.
57
Two observations about Wiesenfeld are pertinent. First, the provision of the Social Security Act held unconstitutional there flatly denied surviving widowers the possibility of obtaining benefits no matter what showing of need might be made. The section under attack in the instant case does not totally foreclose widowers, but simply requires from them a proof of dependency which is not required from similarly situated widows. Second, Wiesenfeld was decided before either Weinberger v. Salfi, supra, or Mathews v. Lucas, supra. Each of those decisions refused uncritically to extend into the field of social security law constitutional proscriptions against distinctions based on illegitimacy and irrebuttable presumptions which had originated in other areas of the law. While the holding of Wiesenfeld is not inconsistent with Salfi or Lucas, its reasoning is not in complete harmony with the recognition in those cases of the special characteristics of social insurance plans.
II
58
Those special characteristics arise from the nature of the legislative problem which numerous sessions of Congress have had to face in defining the coverage of the Social Security Act. The program has been participatory from the outset, in the sense that benefits have not been extended to persons without at least a close relationship to a person paying into the system during his working life. But Congress did not legislate with the idea that it was fulfilling any narrow contractual obligation owed to the program participant. On the contrary, Congress has continually increased the amounts of benefits paid, and expanded the pool of eligible recipients by singling out additional, identifiable groups having both the requisite relationship to the contributing worker and a degree of probable need which, in the legislative judgment, justifies assistance. It is not difficult to predict some traits of the system emerging from this sort of step-by-step legislative expansion.
59
One is that the resulting statute, like the process which produced it, extends benefits in a piecemeal fashion. There will be some individuals with needs demonstrably as great as those within a class of qualifying beneficiaries who will nonetheless be treated less favorably than that class. This is because these classes, formulated and reformulated over a period of decades, could not perfectly mirror the abstract definition of equality of need unless Congress were to burden the system with numerous individualized determinations which might frustrate the primary purposes of the Act.
60
Another characteristic of the Social Security statute which is predictable from the manner of its enactment, is the balance between a desire that payments correlate with degree of need and a recognition that precise correlation is unattainable given the administrative realities of the situation. No one would contend, for example, that all wives of program participants, who are over 62 and entitled to old-age or disability-insurance benefits in their own right equal to no more than one-half of their husband's primary amount, are needy. Nonetheless the administrative problems of determining actual need have led Congress to employ these and factors like them as the determinants of eligibility. 42 U.S.C. § 402(b)(1) (1970 ed. and Supp. V). The overinclusiveness of such categorizations is, in many cases, not only tolerable but Solomonic. For had Congress attempted to distribute program funds in precise accordance with a purpose to alleviate need, it could very well have created a procedural leviathan consuming substantial amounts of those funds in case-by-case determinations of eligibility.
61
The provisions at issue in this case, relating to widows' and widowers' benefits, display all the earmarks of their origins in the oft-repeated process of legislative reconsideration and expansion of beneficiary groups. As originally enacted in 1935, the Social Security Act provided for old-age benefits only to the wage earner. 49 Stat. 623. In 1939, additional provisions were made for benefits to the wage earner's family, including wives and widows, but not including husbands and widowers. The widow's benefit was in an amount larger by one-half than that for the wife, and was available notwithstanding the widow's primary entitlement to benefits in an amount greater than permissible in the case of a wife.1 All things considered, the 1939 amendments reflect a legislative judgment that elderly wives and widows of Social Security recipients were needy groups, and that of the two, the plight of widows was especially severe.2 I agree with the plurality's statement that '(t)here is no indication whatever in any of the legislative history that Congress gave any attention to the specific case of nondependent widows, and found that they were in need of benefits despite their lack of dependency . . ..' Ante, at 215. But neither is there any reason to doubt that it singled out the group of aged widows for especially favorable treatment, see n. 1, supra, because it saw prevalent throughout that group a characteristically high level of need.
62
In 1950, Congress created two new categories of old-age and survivors' insurance benefits for husbands and widowers. With one exception, these provisions were identical to the sections dealing with wives' and widows' benefits. A husband or widower was required additionally to prove that he had been dependent upon his wife for half of his support at the time she became eligible for benefits, or, in the case of the widower, at the time of her death. 64 Stat. 483, 485. This enactment obviously reflected a congressional judgment that there were needy persons in those groups who should properly be able to receive benefits, but that their numbers were not so great as to justify automatic qualification on the basis of age and marriage to a wage-earning wife. Proof of dependence upon the wife for one-half of a husband's support was adopted as a suitable means of eliminating large numbers of men with independent incomes, while preserving an entitlement to benefits in the cases of those shown to lack substantial means to support apart from funds actually brought in by the wife.
63
Subsequent amendments have altered the statute somewhat predictably in the direction of expanded coverage3 but as relevant to this case the basic scheme has remained unchanged. The present statutory treatment of widows and widowers would seem to reflect a pair of legislative judgments about the needs of those two groups. The first is that the persons qualifying for spousal benefits are likely to have even more substantial needs after the passing of their spouse. This is indicated both by the increase in benefits to qualifying widows and widowers which now stand at 100% of the primary amount compared with the 50% paid to spouses,4 and by the increase in the amount of primary benefits that a person may separately receive without losing entitlement to benefits under the spouse's account. While the spouse of a living wage earner loses such entitlement upon receipt of his or her own primary benefits equal to 50% of the wage earner's primary amount, a surviving spouse does not lose such entitlement until receiving separate benefits equal to 100%.5
64
The second legislative judgment implicit in the widow's and widower's provisions is that widows, as a practical matter, are much more likely to be without adequate means of support than are widowers. The plurality opinion makes much of establishing this point, ante, at 212-217, that the absence of any dependency prerequisite to the award of widow's benefits reflects a judgment, resting on 'administrative convenience,' that dependence among aged widows is frequent enough to justify waiving the requirement entirely. I differ not with the recognition of this administrative convenience purpose but with the conclusion that such a purpose necessarily invalidates the resulting classification. Our decisions dealing with social welfare legislation indicate that our inquiry must go further. For rational classifications aimed at distributing funds to beneficiaries under social insurance legislation weigh a good deal more heavily on the governmental interest side of the equal protection balance than they may in other legislative contexts. The 'administrative convenience' which is afforded by such classifications in choosing the administrator of a decedent's estate, see Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), is significantly less important to the effectiveness of the legislative scheme than is the 'convenience' afforded by classifications in administering an Act designed to provide benefits to millions upon millions of beneficiaries with promptness and certainty. For this reason, the plurality errs in merely dispatching this statute with an incantation of 'administrative convenience.' It should go further and consider the governmental interest advanced by the statutory classification in a social insurance statute such as this, in light of the claimed injury to appellee.
III
65
Whatever his actual needs, Goldfarb would, of course, have no complaint if Congress had chosen to require proof of dependency by widows as well as widowers, or if it had simply refrained from making any provision whatever for benefits to surviving spouses. 'A legislature may address a problem 'one step at a time,' or even 'select one phase of one field and apply a remedy there, neglecting the others.' Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955).' ,Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 (1972); Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970). See Geduldig v. Aiello, 417 U.S. 484, 495, 94 S.Ct. 2485, 2491, 41 L.Ed.2d 256 (1974); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911). Any claim which he has must therefore turn upon the alleged impropriety of giving benefits to widows without requiring them to make the same proof of dependency required of widowers. Yet, in the context of the legislative purpose, this amounts not to exclusion but to overinclusiveness for reasons of administrative convenience which, if reasonably supported by the underlying facts, is not offensive to the Equal Protection Clause in social welfare cases.
66
A close analogue to this case is presented by our decision last Term in Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). The plaintiffs there challenged the OASDI provisions for children's benefits, which require no proof of dependency by legitimate children or certain categories of illegitimates,6 but which demand that other illegitimates show dependency by proof that their father lived with them or contributed to their support prior to his death. After first stating that this classification based on legitimacy does not demand 'our most exacting scrutiny,' id., at 506, 96 S.Ct., at 2763, the Court concluded that a general requirement of dependency 'at the time of death is not impermissibly discriminatory in providing only for those children for whom the loss of the parent is an immediate source of the need.' Id., at 507, 96 S.Ct., at 2763. It then upheld the waiver of the dependency proof requirement for legitimates and certain others, by the following reasoning:
67
'The basis for appellees' argument is the obvious fact that each of the presumptions of dependency renders the class of benefit-recipients incrementally overinclusive, in the sense that some children within each class of presumptive dependents are automatically entitled to benefits under the statute although they could not in fact prove their economic dependence upon insured wage earners at the time of death. We conclude that the statutory classifications are permissible, however, because they are reasonably related to the likelihood of dependency at death.
68
'Congress' purpose in adopting the statutory presumptions of dependency was obviously to serve administrative convenience. While Congress was unwilling to assume that every child of a deceased insured was dependent at the time of death, by presuming dependency on the basis of relatively readily documented facts, such as legitimate birth, or existence of a support order or paternity decree, which could be relied upon to indicate the likelihood of continued actual dependency, Congress was able to avoid the burden and expense of specific case-by-case determination in the large number of cases where dependency is objectively probable. Such presumptions in aid of administrative functions, though they may approximate, rather than precisely mirror, the results that case-by-case adjudication would show, are permissible under the Fifth Amendment, so long as that lack of precise equivalence does not exceed the bounds of substantiality tolerated by the applicable level of scrutiny. See Weinberger v. Salfi, 422 U.S. 749, 772, 95 S.Ct. 2457, 2471, 45 L.Ed.2d 522 (1975).
69
'Applying these principles, we think that the statutory classifications challenged here are justified as reasonable empirical judgments that are consistent with a design to qualify entitlement to benefits upon a child's dependency at the time of the parent's death.' 427 U.S., at 508-509, 510, 95 S.Ct., at 2763-2764.
70
The same reasoning should control in the case before us. As in Lucas, Congress has here adopted a test of dependency as a reasonable surrogate for proof of actual need. In Lucas, legitimates and certain others were not required to satisfy that test because, in the legislative view, there was a sufficiently high rate of dependency among those groups to make the requirement of actual proof administratively counterproductive. Here the dependency test was not imposed upon widows, apparently on a similar belief that the actual rate of dependency was sufficiently high that a requirement of proof would create more administrative expense than it would save in the award of benefits.7
IV
71
Perhaps because the reasons asserted for 'heightened scrutiny' of gender-based distinctions are rooted in the fact that women have in the past been victims of unfair treatment, see Frontiero v. Richardson, 411 U.S., at 684-688, 93 S.Ct., at 1769-1771, the plurality says that the difference in treatment here is not only between a widow and a widower, but between the respective deceased spouses of the two. It concludes that wage-earning wives are deprived "of protection for their families which men receive as a result of their employment." Ante, at 206.
72
But this is a questionable tool of analysis which can be used to prove virtually anything. It might just as well have been urged in Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), where we upheld a Florida property tax exemption redounding to the benefit of widows but not widowers, that the real discrimination was between the deceased spouses of the respective widow and widower, who had doubtless by their contributions to the family or marital community helped make possible the acquisition of the property which was now being disparately taxed.
73
Since the claim to social security benefits is noncontractual in nature, see Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1436 (1960), the contributions of the deceased spouse cannot be regarded as creating any sort of contractual entitlement on the part of either the deceased wife or the surviving husband. Here the female wage earner has gotten the degree of protection for her family which Congress was concerned to extend to all. Neither she nor her surviving husband has any constitutional claim to more, simply because Congress has chosen, for administrative reasons, to give benefits to widows without requiring proof of dependency.
74
Viewed from the perspective of the recipient of benefits, the sections involved here are entirely distinguishable from those which this Court has previously struck down. In Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974), the Court invalidated one aspect of the provisions for surviving children$'s benefits which were considered in Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). Those provisions allow legitimate and certain categories of illegitimate children8 to receive benefits, whether born before or after the onset of the wage earner's disability. Other illegitimates were entitled to benefits only upon a showing of dependency prior to the disability, and were therefore conclusively denied benefits if born after the wage earner was disabled. Finding a legislative purpose to aid children with needs demonstrated by a dependency relationship to a disabled worker, the Court found equal protection offended by the statute's denial to some children of any opportunity to prove that they were within that class.
75
In Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), the Court again invalidated OASDI provisions which denied one group any opportunity to show themselves proper beneficiaries given the apparent statutory purpose. A widow not qualifying for widow's benefits was entitled to a mother's benefit if she had in her care a minor child qualifying for a child's benefit, and if she did not receive more than a certain amount of primary benefits in her own right. No such provision was made, however, for a widower in a parallel position. The Court found a purpose in the statute to allow a single parent to stay home and care for the minor child, id., 420 U.S. at 648-649, 95 S.Ct. at 1233, and struck down the denial of benefits to fathers similarly situated. The defect of that statute was its conclusive exception of widowers from the benefited class, solely on the basis of their sex, and in contravention of the legislative purpose to allow parents with deceased spouses to provide personal parental care. There is no plausible claim to be made here that a statutory objective is being thwarted by underinclusiveness of the classes of beneficiaries.
76
This case is also distinguishable from Frontiero v. Richardson, supra, in the sense that social insurance differs from compensation for work done. While there is no basis for assessing the propriety of a given allocation of funds within a social insurance program apart from an identifiable legislative purpose, a compensatory scheme may be evaluated under the principle of equal pay for equal work done. This case is therefore unlike Frontiero, where the Court invalidated sex discrimination among military personnel in their entitlement to increased quarters allowances on account of marriage, and in the eligibility of their spouses for dental and medical care. These compensatory fringe benefits were available to male employees as a matter of course, but were unavailable to females except on proof that their husbands depended on them for over one-half of their support. Since males got such compensatory benefits even though their wives were not so dependent, females with nondependent husbands were effectively denied equal compensation for equal effort. The same is not true here, where the benefit payments to survivors are neither contractual nor compensatory for work done, and where there is thus no comparative basis for evaluating the propriety of a given benefit apart from the legislative purpose.
V
77
The very most that can be squeezed out of the facts of this case in the way of cognizable 'discrimination' is a classification which favors aged widows. Quite apart from any considerations of legislative purpose and 'administrative convenience' which may be advanced to support the classification, this is scarcely an invidious discrimination. Two of our recent cases have rejected efforts by men to challenge similar classifications. We have held that it is not improper for the military to formulate 'up-or-out' rules taking into account sex-based differences in employment opportunities in a way working to the benefit of women, Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975), or to grant solely to widows a property tax exemption in recognition of their depressed plight. Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). A waiver of the dependency prerequisite for benefits, in the case of this same class of aged widows, under a program explicitly aimed at the assistance of needy groups, appears to be well within the holding of the Kahn case, which upheld a flat $500 exemption to widows, without any consideration of need.
VI
78
The classification challenged here is 'overinclusive' only in the sense that widows over 62 may obtain benefits without a showing of need, whereas widowers must demonstrate need. Because this overinclusion is rationally justifiable, given available empirical data, on the basis of 'administrative convenience,' Mathews v. Lucas, supra, is authority for upholding it. The differentiation in no way perpetuates the economic discrimination which has been the basis for heightened scrutiny of gender-based classifications, and is, in fact, explainable as a measure to ameliorate the characteristically depressed condition of aged widows. Kahn v. Shevin, supra, is therefore also authority for upholding it. For both of these reasons, I would reverse the judgment of the District Court.
1
Title 42 U.S.C. § 402(f)(1) (1970 ed. and Supp. V), in pertinent part, provides:
'The widower . . . of an individual who died a fully insured individual, if such widower
'(A) has not remarried,
'(B)(i) has attained age 60, or (ii) has attained age 50 . . . and is under a disability . . .,
'(C) has filed application for widower's insurance benefits . . .,
'(D)(i) was receiving at least one-half of his support . . . from such individual at the time of her death, or if such individual had a period of disability which did not end prior to the month in which she died, at the time such period began or at the time of her death, and filed proof of such support within two years after the date of such death . . ., or (ii) was receiving at least one-half of his support . . . from such individual at the time she became entitled to old-age . . . insurance benefits . . ., and filed proof of such support within two years after the month in which she became entitled to such benefits . . . and,
'(E) is not entitled to old-age insurance benefits or is entitled to old-age insurance benefits each of which is less than the primary insurance amount of his deceased wife,
'shall be entitled to a widower's insurance benefit . . ..'
Compare 42 U.S.C. § 402(e)(1) (1970 ed. and Supp. V), which provides, in pertinent part: 'The widow . . . of an individual who died a fully insured individual, if such widow . . .
'(A) is not married,
'(B)(i) has attained age 60, or (ii) has attained age 50 . . . and is under a disability . . .,
'(C)(i) has filed application for widow's insurance benefits . . . and
'(D) is not entitled to old-age insurance benefits or is entitled to old-age insurance benefits each of which is less than the primary insurance amount of such deceased individual,
'shall be entitled to a widow's insurance benefit . . ..'
2
The decision also applied to § 402(c)(1)(C), which imposes a dependency requirement on husbands of covered female wage earners applying for old-age benefits; wives applying for such benefits are not required to prove dependency, § 402(b). These gender-based classifications have been uniformly held to be unconstitutional. See Abbott v. Weinberger, Civ. No. C74-194 (N.D.Ohio, Feb. 12, 1976), appeal docketed sub nom. Califano v. Abbott, No. 75-1643 (husband's old-age benefits); Coffin v. Secretary of Health, Education and Welfare, 400 F.Supp. 953 (D.C.1975) (three-judge court), appeal docketed sub nom. Califano v. Coffin, No. 75-791 (both husband's and widower's benefits); Jablon v. Secretary of Health, Education and Welfare, 399 F.Supp. 118 (Md.1975) (three-judge court), appeal docketed sub nom. Califano v. Jablon, No. 75-739 (husband's benefits); Silbowitz v. Secretary of Health, Education and Welfare, 397 F.Supp. 862 (S.D.Fla.1975) (three-judge court), appeal docketed sub nom. Califano v. Silbowitz, No. 75-712 (husband's benefits). See also Kalinav. Railroad Retirement Bd., 541 F.2d 1204 (C.A.6 1976) (spouse's annuity under the Railroad Retirement Act of 1974, 45 U.S.C. § 231a(c)(3)(ii) (1970 ed., Supp. V)).
3
Although Mr. Goldfarb did not pursue an administrative appeal of the denial of his application, appellant concedes that because the denial was based on his failure to meet a clear statutory requirement, further administrative review would have been futile and the initial denial was therefore 'final' for purposes of the District Court's jurisdiction to review it under 42 U.S.C. § 405(g). See Weinberger v. Salfi, 422 U.S. 749, 764-767, 95 S.Ct. 2457, 2466-2467, 45 L.Ed.2d 522 (1975).
In order for Mr. Goldfarb to have satisfied § 402(f)(1)(D), his wife would have to have been earning three times what he earned. According to Brief for Appellant 25: 'As a practical matter, only husbands whose wives contribute 75 percent of the family income meet (the dependency) test.' That is because in order to meet the test, the wife must have provided for all of her own half of the family budget, plus half of her husband's share. For more elaborate descriptions of the dependency calculation, see 20 CFR § 404.350 (1976); Social Security Claims Manual, §§ 2625, 2628. See also Brief for Appellant 25-26, and n. 14; Brief for Appellee 5 n. 7.
4
The dissent maintains that this sentence 'overstates (the) relevance' of Wiesenfeld and Frontiero. It is sufficient to answer that the principal propositions argued by appellant and in the dissent namely, the focus on discrimination between surviving, rather than insured, spouses; the reliance on Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); the argument that the presumption of female dependence is empirically supportable; and the emphasis on the special deference due to classifications in the Social Security Act were all asserted and rejected in one or both of those cases as justifications for statutes substantially similar in effect to § 402(f)(1)(D).
5
The disadvantage to the woman wage earner is even more pronounced in the case of old-age benefits, to which a similarly unequal dependency requirement applies. 42 U.S.C. §§ 402(b), (c)(1)(C) (1970 ed. and Supp. V). See n. 2, supra. In that situation, where the insured herself is still living, she is denied not only 'the dignity of knowing (during her working career) that her social security tax would contribute to their joint welfare when the couple or one of them retired and to her husband's welfare should she predecease him,' 396 F.Supp. 308, 309 (E.D.N.Y.1975) (opinion below), but also the more tangible benefit of an increase in the income of the family unit of which she remains a part.
6
See, e.g., H.R.Rep. No. 728, 76th Cong., 1st Sess., 7 (1939), accompanying the bill that extended social security benefits for the first time beyond the covered wage earner himself. The Report emphasizes that the purpose of the amendments was 'to afford more adequate protection to the family as a unit.' (Emphasis supplied.)
7
This is accepted by appellant and appellee. See, e.g., Brief for Appellant 13 n. 2; Brief for Appellee 23; Tr. of Oral Arg. 7.
8
In any event, gender-based discriminations against men have been invalidated when they do not 'serve important governmental objectives and (are not) substantially related to the achievement of those objectives.' Craig v. Boren, 429 190, 197, 97 S.Ct. 451, 457, 50 L.Ed. 397 (1976). Neither Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), nor Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975), relied on by appellant, supports a contrary conclusion. The gender-based distinctions in the statutes involved in Kahn and Ballard were justified because the only discernible purpose of each was the permissible one of redressing our society's longstanding disparate treatment of women. Craig v. Boren, supra, at 198 n. 6, 97 S.Ct. at 457.
But 'the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.' Weinberger v. Wiesenfeld, 420 U.S. 646, 648, 95 S.Ct. 1225, 1233, 43 L.Ed.2d 514 (1975). That inquiry in this case demonstrates that § 402(f)(1)(D) has no such remedial purpose. See Part IV-B, infra. Moreover, the classifications challenged in Wiesenfeld and in this case rather than advantaging women to compensate for past wrongs compounds those wrongs by penalizing women 'who do work and whose earnings contribute significantly to their families' support.' Wiesenfeld, supra, at 645, 95 S.Ct., at 1232.
9
Thus, justifications that suffice for non-gender-based classifications in the social welfare area do not necessarily justify gender discriminations. For example, Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), sustained a discrimination designed to weed out collusive marriages without making case-by-case determinations between marriages of less than nine months' duration and longer ones on the ground:
'While such a limitation doubtless proves in particular cases to be 'under-inclusive' or 'over-inclusive,' in light of its presumed purpose, it is nonetheless a widely accepted response to legitimate interests in administrative economy and certainty of coverage for those who meet its terms.' Id., at 776, 95 S.Ct. at 2472. Yet administrative convenience and certainty of result have been found inadequate justifications for gender-based classifications. Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971); Frontiero v. Richardson, 411 U.S. 677, 690, 93 S.Ct. 1764, 1772, 36 L.Ed.2d 583 (1973); Stanley v. Illinois, 405 U.S. 645, 656-657, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 495, 509-510, 96 S.Ct. 2755, 2764, 49 L.Ed.2d 651 (1976).
10
This argument is made for the first time in appellant's brief. The Jurisdictional Statement, p. 11, argued only the rationality of 'extending to women . . . the presumption of dependency.'
11
Although presumed need has been a factor in determining the amounts of social security benefits, in addition to the extent of contributions made to the system, the primary determinants of the benefits received are the years worked and amount earned by the covered worker. 42 U.S.C. §§ 414, 415 (1970 ed. and Supp. V). See Weinberger v. Wiesenfeld, 420 U.S., at 647, and nn. 14, 15, 95 S.Ct., at 1232. In any event, need is not a requirement for inclusion in any beneficiary category, 42 U.S.C. § 402 (1970 ed. and Supp. V), and from the beginning was intended to be irrelevant to the right to receive benefits. See H.R.Rep. No. 615, 74th Cong., 1st Sess., 1 (1935).
12
Old-age or survivors' benefits may be paid to the insured wage earner himself, 42 U.S.C. § 402(a) (1970 ed. and Supp. V); his spouse, while he is still alive, §§ 402(b), (c), or after his death, §§ 402(e), (f), (g); his children, § 402(d); and his parents, § 402(h).
13
Dependency is a prerequisite to qualification for parents' benefits, § 402(h)(1)(B); children's benefits, § 402(d)(1)(C); husbands' benefits, § 402(c) (1)(C); and widowers' benefits, § 402(f)(1)(D). (Certain children are 'deemed' dependent, § 402(d)(3). This presumption was upheld as sufficiently accurate to pass scrutiny on grounds of 'administrative convenience,' Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 657 (1976).)
14
This payment essentially amounted to 3 1/2% of the wage earner's earnings while covered, less the amount received as an old-age pension. Social Security Act § 203, 49 Stat. 623.
15
See also remarks of Senator Harrison, 84 Cong.Rec. 8827 (1939). To the extent that this statement indicates that Congress found widows and orphans needier than other dependents, it may support a discrimination between dependent widows and dependent widowers, but it certainly demonstrates a congressional assumption that widows are dependent, rather than an intention to aid nondependent widows because of a finding that they are needier than nondependent widowers.
16
See also Final Report of the Advisory Council on Social Security in Hearings on the Social Security Act Amendments of 1939 before the House Committee on Ways and Means, 76th Cong., 1st Sess., 30 (1939): 'The inadequacy of the benefits payable during the early years of the old-age insurance program is more marked where the benefits must support not only the annuitant himself but also his wife.'
17
See also the further excerpts from and discussion of the legislative history in Wiesenfeld, 420 U.S., at 644 n. 13, 95 S.Ct. at 1231.
18
In fact, the legislative history suggests that Congress proceeded casually on a 'then generally accepted' stereotype and did not focus on the possible expense of determining dependence in every case.
1
For this reason this case is not controlled by Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583.
2
The contrary analysis in Weinberger v. Wiesenfeld, 420 U.S. 636, 646-647, 95 S.Ct. 1225, 1232, 43 L.Ed.2d 514, was not necessary to the decision of that case. See Id., at 655, 95 S.Ct., at 1236 (Rehnquist, J., concurring in result).
3
In most cases the statutory scheme for the distribution of benefits to the surviving spouses of deceased persons who paid FICA taxes on their earnings does not involve any discrimination on account of sex. Dependent spouses of both sexes are eligible; also, nondependent surviving spouses of both sexes are ineligible if their own social security retirement benefits are as large as those of their deceased spouses. There is, however, a narrow area in which the eligibility of nondependent spouses depends solely on their sex: Those who received between 50% and 75% of their support from their deceased spouses are eligible for benefits if they are female, but not if they are male. Similarly, if their earnings were not covered by the Social Security Act, as was true of the plaintiff in this case, and their earnings were less than 75% of the decedent's, they are eligible if they are female, but not if they are male. See ante, at 201-202, n. 1.
4
Dependency in the statutory sense is a clearly defined criterion for eligibility which would have to be applied only once for each applicant. It is a requirement which several other classes of potential beneficiaries are required to meet. Moreover, the requirement would be especially easy to apply since 77% of the women over 55 do not work. (See post, at 238 n. 7.)
5
As of 1974, 3,546,000 women received widows' benefits. (This figure does not include 'dually entitled' women who also received benefits on their own social security accounts.) Task Force on Women and Social Security, Women and Social Security: Adapting to a New Era (prepared for the Senate Special Committee on Aging, 94th Cong., 1st Sess., 84) (Comm. Print 1975). Using Mr. Justice REHNQUIST'S estimate, 10% of these women, or 354,600, are actually nondependent. The Secretary informs us that the average yearly widower's benefit is $2,213. Brief for Appellant 5A. Assuming that this figure also applies to widows, a total of $784,729,800 is now being paid to widows who are not actually dependent. Under similar Social Security provisions, 42 U.S.C. §§ 402(b), (c)(1)(C) (1970 ed. and Supp. V), men but not women whose spouses have retired must prove dependency to qualify for benefits. Calculations based based on the same sources and assumptions indicate that each of 270,100 nondependent wives receives $1,168, a total of $315,476,800. Thus, the cost of this administrative convenience amounts to approximately $1 billion each year.
6
The Secretary appears to concede that this was not the justification. Brief for Appellant 22. Moreover, a 1957 amendment to the statute is inconsistent with this justification. Widow's benefits were originally not payable to a widow who had lived apart from her husband unless she had been 'receiving regular contributions from him toward her support' or unless a court had ordered him to pay support. § 209(n), 53 Stat. 1378. This provision was retained for widows in 1950 when benefits were extended to dependent widowers. § 216(h)(2), 64 Stat. 511. The requirement that a widow who had lived separately from her husband receive at least some support from him, makes sense if Congress was concerned with the statutory 50% test for dependency; such widows are obviously far less likely to meet that test than widows who had lived with their husbands. But Congress deleted the provision in 1957 and extended benefits to all widows, including those who lived apart from their husbands, with no requirement of support, § 216(h), 71 Stat. 518. The 1957 amendment is affirmative evidence that Congress intended to provide benefits for all widows regardless of whether they could satisfy the statutory dependency test. It is also noteworthy that elsewhere in the statute Congress indicated its intention to create a presumption of dependency by stating that certain family members are 'deemed dependent' under certain circumstances. See § 202(d)(3), 42 U.S.C. § 402(d)(3).
For the reasons stated in Part IV-B of Mr. Justice BRENNAN's opinion, the Secretary's alternative explanation of the statute as being a welfare measure intended to alleviate the poverty of elderly widows is plainly unacceptable.
7
One indication that the 1939 Act was not the result of a focused decision concerning the needs of nondependent widows vis-a$-vis widowers is the breadth of the statutory classification. Under the 1939 Act:
'(C)hildren of covered female workers were eligible for survivors' benefits only in limited circumstances . . . and no benefits whatever were made available to husbands or widowers on the basis of their wives' covered employment.' Weinberger v. Wiesenfeld, 420 U.S., at 643-644, 95 S.Ct., at 1231.
The disqualification of a woman's surviving children if they had received any support from their father, § 202(c)(4), 53 Stat. 1365, is particularly difficult to reconcile with the theory that the legislative motive was a conscious desire to remedy sex discrimination.
Similarly, in extending benefits to dependent widowers, Congress made no mention of any determination that nondependent widowers were less needy than nondependent widows, or that nondependent widows deserved greater benefits as a remedy for sex discrimination. See ante, at 216.
8
The discriminatory feature of the state can be said to be the fact that women are given the benefit of a broad, vague definition of 'dependent' while men are held to a harsh arithmetic standard. This serves to answer the argument that appellee will receive a windfall by a judgment in his favor. Although appellee is not a dependent in the definition applied to widowers, it cannot be said with assurance that he is not a dependent in whatever broad sense Congress had in mind when it classified all widows as dependents.
9
In the absence of evidence to the contrary, we might presume that Congress had such an interest in mind, see Hampton v. Mow Sun Wong, 426 U.S., at 103, 96 S.Ct. at 1905, but here that presumption is untenable. Perhaps an actual, considered legislative choice would be sufficient to allow this statute to be upheld, but that is a question I would reserve until such a choice has been made.
10
This presumption was expressly recognized in the literature of the 19th century. It was this presumption that Mr. Bumble ridiculed when he disclaimed responsibility for his wife's misconduct. Because a part of his disclaimer is so well known, it may not be inappropriate to quote the entire passage:
"It was all Mrs. Bumble. She would do it,' urged Mr. Bumble; first looking round to ascertain that his partner had left the room.
"That is no excuse,' replied Mr. Brownlow. 'You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.'
"If the law supposes that,' said Mr. Bumble, squeezing his hat emphatically in both hands, 'the law is a ass a idiot. If that's the eye of the law, the law's a bachelor; and the worst I wish the law is, that his eye may be opened by experience by experience." C. Dickens, The Adventures of Oliver Twist, c. LI (emphasis added).
1
It is noteworthy that Congress did not simply state generally that immediate family members were entitled to benefits in a certain amount, but set forth several categories of benefits for family members, with unique conditions and benefit amounts attaching to each.
'Wife's Insurance Benefits' in the amount of one-half the husband's primary benefit, were to be given to a program participant's wife if she was over 65, lived with her husband (or received support from him, see 53 Stat. 1378) at the time of filing her application, and was not entitled to primary benefits of her own in an amount equal to or greater than one-half of her husband's primary amount.
'Widow's Insurance Benefits' equal to three-fourths the deceased husband's primary benefit, were made available to an unmarried widow over 65, who lived with the wage earner (or received support from him) at the time of his death, and was not entitled to primary benefits on her own equal to or greater than three-fourths of the husband's primary amount.
In addition, 'Widow's Current Insurance Benefits' were made available to one failing to qualify for the widow's benefit solely on account of age, who had in her care a child qualifying for 'Child's Insurance Benefits' under still another section of the amended statute. The amendments also provided for 'Parent's Insurance Benefit' and 'Lump-Sun Death Payments.' 53 Stat. 1364-1367.
The manner in which these provisions were drafted makes clear that each involved a separate congressional judgment about the most appropriate definition and actual needs of each group.
2
The Final Report of the Advisory Council on Social Security explained the provision as follows:
'The day of large families and of the farm economy, when aged parents were thereby assured comfort in their declining years, has passed for a large proportion of our population. This change has had particular devastating effect on the sense of security of the aged women of our country.
'Women as a rule live longer than men. Wives are often younger than their husbands. Consequently, the probabilities are that a woman will outlive her husband. Old-age insurance benefits for the husband, supplemented during his life by an allowance payable on behalf of his wife, fall considerably short, therefore, of providing adequate old-age security.'
Hearings on Social Security Act Amendments of 1939 before the House Committee on Ways and Means, 76th Cong., 1st Sess., 31-32 (1939).
Likewise, the House Committee Report described widows over 65, widows with children, orphans, and dependent parents over 65 (to whom the 1939 amendments extended benefits) as the 'groups of survivors whose probable need is greatest.' H.R.Rep. No. 728, 76th Cong., 1st Sess., 11 (1939). Thus, there is good reason to suppose that the 1939 enactment of a provision for widow's benefits was in response to congressional perception of substantial poverty among the large group of aged widows.
The problem persists today in proportions far greater than among the parallel group of aged widowers. In 1974, two out of three poor persons over 65 were women. Four out of five men over 65 were married, but 52% of aged women were widows. Of older women living alone, 33.4% were below the poverty line. Task Force on Women and Social Security, Women and Social Security: Adapting to a New Era, prepared for the Senate Special Committee on Aging, 94th Cong., 1st Sess., 37, 42, 68-69 (Comm. Print 1975).
3
Among these changes are the lowering of the age of eligibility, the elimination, concerning spouse's and surviving spouse's benefits, of any requirement of cohabitation, and the increase in widow's and widower's benefits and in permissible primary benefits received in the beneficiary's own right from 75% to 100% of the wage earner's primary benefit. Also, additional provision has been made, under each spousal category of benefits, for a divorced spouse who was married to the wage earner for at least 20 years. This Court has recently upheld unanimously the wife's benefits section's imposition of the minimum-age requirement upon divorced wives with qualifying minor children, while waiving it in the case of undivorced wives caring for such children. Mathews v. De Castro, 429 U.S. 181, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976).
4
42 U.S.C. §§ 402(b)(2), (c)(3), (e)(2)(A), (f)(3)(A) (1970 ed. and Supp. V).
5
42 U.S.C. §§ 402(b)(1)(D), (c)(1)(D), (e)(1)(D), (f)(i)(E) (1970 ed. and Supp. V).
6
Notwithstanding their illegitimacy, children need not demonstrate dependency if entitled to inherit from the insured parent under the state intestacy laws; if the decedent went through a marriage ceremony with the other parent which would have been valid but for a nonobvious legal defect; if the decedent had acknowledged the child in writing; or if he had been decreed to be the child's father or ordered by a court to support the child because the child was his. 42 U.S.C. §§ 402(d), 416(h) (1970 ed. and Supp. V).
7
There is substantial statistical evidence indicating that the differential treatment of widows and widowers is economically justifiable on the basis of administrative convenience. There is good reason to suppose that few enough aged widows are not, in fact, dependent at the time of their husband's death that the costs of administering the test would exceed the savings resulting from its application. Among married couples throughout our population, 43% of the wives as of 1974 are in the labor force. Bureau of the Census, A Statistical Portrait of Women in the United States 52 (Table 10-9) (Apr. (1973). Among those 43%, wives with husbands over 25 years of age contribute a median of 26.1% of the family income. Ibid. (Table 10-10). This is approximately equal to the 25% maximum contribution one can make and still be statutorily dependent. It thus follows that among the married population as a whole the number of dependent wives is roughly equal to the sum of those who do not work, plus one-half of those who do (since by definition, one-half contribute more and one-half contribute less than the median of 26.1%). That calculation here leads to a conclusion that about 78.5% (57% $ 21.5%) of all married women are dependent.
With regard to the group of women otherwise qualifying for widow's benefits, this figure is significantly higher. Whereas the employment rate among women between 20 and 54 is about 56%, the rate for women 55 and over is only 23%. (These figures are derived from data appearing id., at 27-28 (Tables 7-1, 7-2)). Because it is dependency at the time of the working spouse's death which is relevant under the statute, the work habits of those over 55 are most relevant for determining the actual number of widows who would be excluded by a dependency test. Even if married women over 55 work as often as unmarried women in that group (an unlikelihood given the greater probability that unmarried women will have no alternative means of support), this 23% figure indicates that they work just over one-half as often as the population of all married women (43% of whom work id., at 52 (Table 10-9).) This suggests that the number of married women over 55 who would satisfy the dependency test is something like 88.5% the 77% who do not work, plus half of the remaining 23% who do. This nine-tenths correlation appears sufficiently high to justify extension of benefits to the other one-tenth for reasons of administrative convenience.
On the side of widower's benefits, the incidence of dependent husbands is certainly low enough to justify any administrative expense incurred in screening out those who are not dependent. In 1970, only 2.5% of working wives contributed more than the 75% of the family income which renders the husband dependent. F. Linden, Women: A Demographic, Social and Economic Presentation 34 (1973). Since only 43% of all wives work, the incidence of dependent husbands among all married couples is approximately 1% (.25 $ .43 $ .0108).
8
See n. 6, supra.
| 12
|
430 U.S. 274
97 S.Ct. 1076
51 L.Ed.2d 326
COMPLETE AUTO TRANSIT, INC., Appellant,v.Charles R. BRADY, Jr., etc.
No. 76-29.
Argued Jan. 19, 1977.
Decided March 7, 1977.
Rehearing Denied April 18, 1977.
See 430 U.S. 976, 97 S.Ct. 1669.
Syllabus
A Mississippi tax on the privilege of doing business in the State held not to violate the Commerce Clause when it is applied to an interstate activity (here the transportation by motor carrier in Mississippi to Mississippi dealers of cars manufactured outside the State) with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State. Spector Motor Service v. O'Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573, overruled. Pp. 279-289.
330 So.2d 268, Miss., affirmed.
Alan W. Perry, Jackson, Miss., for appellant.
James H. Haddock, Jackson, Miss., for appellee.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Once again we are presented with "the perennial problem of the validity of a state tax for the privilege of carrying on within a state, certain activities' related to a corporation's operation of an interstate business.' Colonial Pipeline Co. v. Traigle, 421 U.S. 100, 101, 95 S.Ct. 1538, 1539, 44 L.Ed.2d 1 (1975), quoting Memphis Gas Co. v. Stone, 335 U.S. 80, 85, 68 S.Ct. 1475, 1477, 92 L.Ed. 1832 (1948). The issue in this case is whether Mississippi runs afoul of the Commerce Clause, U.S. Const., Art. I, § 8, cl. 3, when it applies the tax it imposes on 'the privilege of . . . doing business' within the State to appellant's activity in interstate commerce. The Supreme Court of Mississippi unanimously sustained the tax against appellant's constitutional challenge. 330 So.2d 268 (1976). We noted probable jurisdiction in order to consider anew the applicable principles in this troublesome area. 429 U.S. 813, 97 S.Ct. 52, 50 L.Ed.2d 72 (1976).
2
* The taxes in question are sales taxes assessed by the Mississippi State Tax Commission against the appellant, Complete Auto Transit, Inc., for the period from August 1, 1968, through July 31, 1972. The assessments were made pursuant to the following Mississippi statutes:
3
'There is hereby levied and assessed and shall be collected, privilege taxes for the privilege of engaging or continuing in business or doing business within this state to be determined by the application of rates against gross proceeds of sales or gross income or values, as the case may be, as provided in the following sections.' Miss.Code Ann., 1942, § 10105 (1972 Supp.), as amended.1
4
'Upon every person operating a pipeline, railroad, airplane, bus, truck, or any other transportation business for the transportation of persons or property for compensation or hire between points within this State, there is hereby levied, assessed, and shall be collected, a tax equal to five per cent of the gross income of such business . . ..' § 10109(2), as amended.2
5
Any person liable for the tax is required to add it to the gross sales price and, 'insofar as practicable,' to collect it at the time the sales price is collected. § 10117, as amended.3
6
Appellant is a Michigan corporation engaged in the business of transporting motor vehicles by motor carrier for General Motors Corporation. General Motors assembles outside Mississippi vehicles that are destined for dealers within the State. The vehicles are then shipped by rail to Jackson, Miss., where, usually within 48 hours, they are loaded onto appellant's trucks and transported by appellant to the Mississippi dealers. App. 47-48, 78-79, 86-87. Appellant is paid on a contract basis for the transportation from the railhead to the dealers.4 Id., 50-51, 68.
7
By letter dated October 5, 1971, the Mississippi Tax Commission informed appellant that it was being assessed taxes and interest totaling $122,160.59 for the sales of transportation services during the three-year period from August 1, 1968, through July 31, 1971.5 Remittance within 10 days was requested. Id., at 9-10. By similar letter dated December 28, 1972, the Commission advised appellant of an assessment of $42,990.89 for the period from August 1, 1971, through July 31, 1972. Id., at 11-12. Appellant paid the assessments under protest and, in April 1973, pursuant to § 10121.1, as amended, of the 1942 Code (now § 27-65-47 of the 1972 Code), instituted the present refund action in the Chancery Court of the First Judicial District of Hinds County.
8
Appellant claimed that its transportation was but one part of an interstate movement, and that the taxes assessed and paid were unconstitutional as applied to operations in interstate commerce. App. 4, 6-7. The Chancery Court, in an unreported opinion, sustained the assessments. Id., at 99-102.
9
The Mississippi Supreme Court affirmed. It concluded:
10
'It will be noted that Taxpayer has a large operation in this State. It is dependent upon the State for police protection and other State services the same as other citizens. It should pay its fair share of taxes so long, but only so long, as the tax does not discriminate against interstate commerce, and there is no danger of interstate commerce being smothered by cumulative taxes of several states. There is no possibility of any other state duplicating the tax involved in this case.' 330 So.2d, at 272.
11
Appellant, in its complaint in Chancery Court, did not allege that its activity which Mississippi taxes does not have a sufficient nexus with the State; or that the tax discriminates against interstate commerce; or that the tax is unfairly apportioned; or that it is unrelated to services provided by the State.6 No such claims were made before the Mississippi Supreme Court, and although appellant argues here that a tax on 'the privilege of engaging in interstate commerce' creates an unacceptable risk of discrimination and undue burdens, Brief for Appellant 20-27, it does not claim that discrimination or undue burdens exist in fact.
12
Appellant's attack is based solely on decisions of this Court holding that a tax on the 'privilege' of engaging in an activity in the State may not be applied to an activity that is part of interstate commerce. See, e. g., Spector Motor Service v. O'Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573 (1951); Freeman v. Hewit, 329 U.S. 249, 67 S.Ct. 274, 91 L.Ed. 265 (1946). This rule looks only to the fact that the incidence of the tax is the 'privilege of doing business'; it deems irrelevant any consideration of the practical effect of the tax. The rule reflects an underlying philosophy that interstate commerce should enjoy a sort of 'free trade' immunity from state taxation.7
13
Appellee, in its turn, relies on decisions of this Court stating that '(i)t was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing the business,' Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 254, 58 S.Ct. 546, 548, 82 L.Ed. 823 (1938). These decisions8 have considered not the formal language of the tax statute but rather its practical effect, and have sustained a tax against Commerce Clause challenge when the tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State.
14
Over the years, the Court has applied this practical analysis in approving many types of tax that avoided running afoul of the prohibition against taxing the 'privilege of doing business,' but in each instance it has refused to overrule the prohibition. Under the present state of the law, the Spector rule, as it has come to be known, has no relationship to economic realities. Rather it stands only as a trap for the unwary draftsman.
II
15
The modern origin of the Spector rule may be found in Freeman v. Hewit, supra.9 At issue in Freeman was the application of an Indiana tax upon 'the receipt of the entire gross income' of residents and domiciliaries. 329 U.S., at 250, 67 S.Ct., at 275. Indiana sought to impose this tax on income generated when a trustee of an Indiana estate instructed his local stockbroker to sell certain securities. The broker arranged with correspondents in New York to sell the securities on the New York Stock Exchange. The securities were sold, and the New York brokers, after deducting expenses and commission, transmitted the proceeds to the Indiana broker who in turn delivered them, less his commission, to the trustee. The Indiana Supreme Court sustained the tax, but this Court reversed.
16
Mr. Justice Frankfurter, speaking for five Members of the Court, announced a blanket prohibition against any state taxation imposed directly on an interstate transaction. He explicitly deemed unnecessary to the decision of the case any showing of discrimination against interstate commerce or error in apportionment of the tax. Id., at 254, 256-257, 67 S.Ct., at 277, 278-79. He recognized that a State could constitutionally tax local manufacture, impose license taxes on corporations doing business in the State, tax property within the State, and tax the privilege of residence in the State and measure the privilege by net income, including that derived from interstate commerce. Id., at 255, 67 S.Ct., at 278. Nevertheless, a direct tax on interstate sales, even if fairly apportioned and nondiscriminatory, was held to be unconstitutional per se.
17
Mr. Justice Rutledge, in a lengthy concurring opinion, argued that the tax should be judged by its economic effects rather than by its formal phrasing. After reviewing the Court's prior decisions, he concluded: 'The fact is that 'direct incidence' of a state tax or regulation . . . has long since been discarded as being in itself sufficient to outlaw state legislation.' Id., at 265-266, 67 S.Ct., at 283-284. In his view, a state tax is unconstitutional only if the activity lacks the necessary connection with the taxing state to give 'jurisdiction to tax,' id., at 271, 67 S.Ct., at 286, or if the tax discriminates against interstate commerce, or if the activity is subject to multiple taxation. Id., at 276-277, 67 S.Ct., at 289.10
18
The rule announced in Freeman was viewed in the commentary as a triumph of formalism over substance, providing little guidance even as to formal requirements. See P. Hartman, State Taxation of Interstate Commerce 200-204 (1953); Dunham, Gross Receipts Taxes on Interstate Transactions, 47 Colum.L.Rev. 211 (1947). Although the rule might have been utilized as the keystone of a movement toward absolute immunity of interstate commerce from state taxation,11 the Court consistently has indicated that 'interstate commerce may be made to pay its way,' and has moved toward a standard of permissibility of state taxation based upon its actual effect rather than its legal terminology.
19
The narrowing of the rule to one of draftsmanship and phraseology began with another Mississippi case, Memphis Gas Co. v. Stone, 335 U.S. 80, 68 S.Ct. 1475, 92 L.Ed. 1832 (1948). Memphis Natural Gas Company owned and operated a pipeline running from Louisiana to Memphis. Approximately 135 miles of the line were in Mississippi. Mississippi imposed a 'franchise or excise' tax measured by 'the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by (a corporation) within this state.' Miss. Code Ann., 1942, § 9313. The Mississippi Supreme Court upheld the tax, and this Court affirmed.
20
In an opinion for himself and two others, Mr. Justice Reed noted that the tax was not discriminatory, that there was no possibility of multiple taxation, that the amount of the tax was reasonable, and that the tax was properly apportioned to the investment in Mississippi. 335 U.S., at 87-88, 68 S.Ct., at 1478-79. He then went on to consider whether the tax was 'upon the privilege of doing interstate business within the state.' Id., at 88, 68 S.Ct., at 1479. He drew a distinction between a tax on 'the privilege of doing interstate business' and a tax on 'the privilege of exercising corporate functions within the State,' and held that while the former is unconstitutional, the latter is not barred by the Commerce Clause. Id., at 88-93, 68 S.Ct., at 1481. He then approved the tax there at issue because
21
'there is no attempt to tax the privilege of doing an interstate business or to secure anything from the corporation by this statute except compensation for the protection of the enumerated local activities of 'maintaining, keeping in repair, and otherwise in manning the facilities." Id., at 93, 68 S.Ct., at 1482.
22
Mr. Justice Black concurred in the judgment without opinion. Id., at 96, 68 S.Ct., at 1483. Mr. Justice Rutledge provided the fifth vote, stating in his concurrence:
23
'(I)t is enough for me to sustain the tax imposed in this case that it is one clearly within the state's power to lay insofar as any limitation of due process or 'jurisdiction to tax' in that sense is concerned; it is nondiscriminatory, that is, places no greater burden upon interstate commerce than the state places upon competing intrastate commerce of like character; is duly apportioned, that is, does not undertake to tax any interstate activities carried on outside the state's borders; and cannot be repeated by any other state.' Id., at 96-97, 68 S.Ct., at 1483-1484. (footnotes omitted).
24
Four Justices dissented, id., at 99, 68 S.Ct., at 1485, on the grounds that it had not been shown that the State afforded any protection in return for the tax,12 and that, therefore, the tax must be viewed as one on the 'privilege' of engaging in interstate commerce. The dissenters recognized that an identical effect could be achieved by an increase in the ad valorem property tax, id., at 104, 68 S.Ct., at 1487 but would have held, notwithstanding, that a tax on the 'privilege' is unconstitutional.
25
The prohibition against state taxation of the 'privilege' of engaging in commerce that is interstate was reaffirmed in Spector Motor Service v. O'Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573 (1951), a case similar on its facts to the instant case. The taxpayer there was a Missouri corporation engaged exclusively in interstate trucking. Some of its shipments originated or terminated in Connecticut. Connecticut imposed on a corporation a 'tax or excise upon its franchise for the privilege of carrying on or doing business within the state,' measured by apportioned net income. Id., at 603-604, n. 1, 71 S.Ct. at 509. Spector brought suit in federal court to enjoin collection of the tax as applied to its activities. The District Court issued the injunction. The Second Circuit reversed. This Court, with three Justices in dissent, in turn reversed the Court of Appeals and held the tax unconstitutional as applied.
26
The Court recognized that 'where a taxpayer is engaged both in intrastate and interstate commerce, a state may tax the privilege of carrying on intrastate business and, within reasonable limits, may compute the amount of the charge by applying the tax rate to a fair proportion of the taxpayer's business done within the state, including both interstate and intrastate.' Id., at 609-610, 71 S.Ct., at 512 (footnote omitted). It held, nevertheless, that a tax on the 'privilege' of doing business is unconstitutional if applied against what is exclusively interstate commerce. The dissenters argued, on the other hand, id., at 610, 71 S.Ct., at 512, that there is no constitutional difference between an 'exclusively interstate' business and a 'mixed' business, and that a fairly apportioned and nondiscriminatory tax on either type is not prohibited by the Commerce Clause.
27
The Spector rule was applied in Railway Express Agency v. Virginia, 347 U.S. 359, 74 S.Ct. 558, 98 L.Ed. 337 (1954) (Railway Express I), to declare unconstitutional a State's 'annual license tax' levied on gross receipts for the 'privilege of doing business in this State.' The Court, by a 5-to-4 vote, held that the tax on gross receipts was a tax on the privilege of doing business rather than a tax on property in the State, as Virginia contended.
28
Virginia thereupon revised the wording of its statute to impose a 'franchise tax' on 'intangible property' in the form of 'going concern' value as measured by gross receipts. The tax was again asserted against the Agency which in Virginia was engaged exclusively in interstate commerce. This Court's opinion, buttressed by two concurring opinions and one concurrence in the result, upheld the reworded statute as not violative of the Spector rule. Railway Express Agency v. Virginia, 358 U.S. 434, 79 S.Ct. 411, 3 L.Ed.2d 450 (1959) (Railway Express II). In upholding the statute, the Court's opinion recognized that the rule against taxing the 'privilege' of doing interstate business had created a situation where 'the use of magic words or labels' could 'disable an otherwise constitutional levy.' Id., at 441, 79 S.Ct., at 416.
29
There was no real economic difference between the statutes in Railway Express I and Railway Express II. The Court long since had recognized that interstate commerce may be made to pay its way. Yet under the Spector rule, the economic realities in Railway Express I became irrelevant. The Spector rule had come to operate only as a rule of draftsmanship, and served only to distract the courts and parties from their inquiry into whether the challenged tax produced results forbidden by the Commerce Clause.
30
On the day it announced Railway Express II, the Court further confirmed that a State, with proper drafting, may tax exclusively interstate commerce so long as the tax does not create any effect forbidden by the Commerce Clause. In Northwestern Cement Co. v. Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959), the Court held that net income from the interstate operations of a foreign corporation may be subjected to state taxation, provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the tax. Limited in that way, the tax could be levied even though the income was generated exclusively by interstate sales. Spector was distinguished, briefly and in passing, as a case in which 'the incidence' of the tax 'was the privilege of doing business.' 358 U.S., at 464, 79 S.Ct., at 365.
31
Thus, applying the rule of Northwestern Cement to the facts of Spector, it is clear that Connecticut could have taxed the apportioned net income derived from the exclusively interstate commerce. It could not, however, tax the 'privilege' of doing business as measured by the apportioned net income. The reason for attaching constitutional significance to a semantic difference is difficult to discern.
32
The unsatisfactory operation of the Spector rule is well demonstrated by our recent case of Colonial Pipeline Co. v. Traigle, 421 U.S. 100, 95 S.Ct. 1538, 44 L.Ed.2d 1 (1975). Colonial was a Delaware corporation with an interstate pipeline running through Louisiana for approximately 258 miles. It maintained a work force and pumping stations in Louisiana to keep the pipeline flowing, but it did no intrastate business in that State. Id., at 101-102, 95 S.Ct., at 1539-40. In 1962, Louisiana imposed on Colonial a franchise tax for 'the privilege of carrying on or doing business' in the State. The Louisiana Court of Appeal invalidated the tax as violative of the rule of Spector. Colonial Pipeline Co. v. Moton, 228 So.2d 718 (La.App.1969). The Supreme Court of Louisiana refused review. 255 La. 474, 231 So.2d 393 (1970). The Louisiana Legislature, perhaps recognizing that it had run afoul of a rule of words rather than a rule of substance, then redrafted the statute to levy the tax, as an alternative incident, on the 'qualification to carry on or do business in this state or the actual doing of business within this state in a corporate form.' Again, the Court of Appeal held the tax unconstitutional as applied to the appellant. Colonial Pipeline Co. v. Agerton, 275 So.2d 834 (La.App.1973). But this time the Louisiana Supreme Court upheld the new tax. 289 So.2d 93 (La.1974).
33
By a 7-to-1 vote, this Court affirmed. No question had been raised as to the propriety of the apportionment of the tax, and no claim was made that the tax was discriminatory. 421 U.S., at 101, 95 S.Ct., at 1539. The Court noted that the tax was imposed on that aspect of interstate commerce to which the State bore a special relation, and that the State bestowed powers, privileges, and benefits sufficient to support a tax on doing business in the corporate form in Louisiana. Id., at 109, 95 S.Ct., at 1543. Accordingly, on the authority of Memphis Gas, the tax was held to be constitutional. The Court distinguished Spector on the familiar ground that it involved a tax on the privilege of carrying on interstate commerce, while the Louisiana Legislature, in contrast, had worded the statute at issue 'narrowly to confine the impost to one related to appellant's activities within the State in the corporate form.' 421 U.S., at 113-114, 95 S.Ct., at 1546.13
34
While refraining from overruling Spector, the Court noted:
35
'(D)ecisions of this Court, particularly during recent decades, have sustained nondiscriminatory, properly apportioned state corporate taxes upon foreign corporations doing an exclusively interstate business when the tax is related to a corporation's local activities and the State has provided benefits and protections for those activities for which it is justified in asking a fair and reasonable return.' Id., at 108, 95 S.Ct., at 1543.
36
One commentator concluded: 'After reading Colonial, only the most sanguine taxpayer would conclude that the Court maintains a serious belief in the doctrine that the privilege of doing interstate business is immune from state taxation.' Hellerstein, State Taxation of Interstate Business and the Supreme Court, 1974 Term: Standard Pressed Steel and Colonial Pipeline, 62 Va.L.Rev. 149, 188 (1976).14
III
37
In this case, of course, we are confronted with a situation like that presented in Spector. The tax is labeled a privilege tax 'for the privilege of . . . doing business' in Mississippi, § 10105 of the State's 1942 Code, as amended, and the activity taxed is, or has been assumed to be, interstate commerce. We note again that no claim is made that the activity is not sufficiently connected to the State to justify a tax, or that the tax is not fairly related to benefits provided the taxpayer, or that the tax discriminates against interstate commerce, or that the tax is not fairly apportioned.
38
The view of the Commerce Clause that gave rise to the rule of Spector perhaps was not without some substance. Nonetheless, the possibility of defending it in the abstract does not alter the fact that the Court has rejected the proposition that interstate commerce is immune from state taxation:
39
'It is a truism that the mere act of carrying on business in interstate commerce does not exempt a corporation from state taxation. 'It was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing business.' Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 254, 58 S.Ct. 546, 548, 82 L.Ed. 823 (1938).' Colonial Pipeline Co. v. Traigle, 421 U.S., at 108, 95 S.Ct., at 1543.
40
Not only has the philosophy underlying the rule been rejected, but the rule itself has been stripped of any practical significance. If Mississippi had called its tax one on 'net income' or on the 'going concern value' of appellant's business, the Spector rule could not invalidate it. There is no economic consequence that follows necessarily from the use of the particular words, 'privilege of doing business,' and a focus on that formalism merely obscrues the question whether the tax produces a forbidden effect. Simply put, the Spector rule does not address the problems with which the Commerce Clause is concerned.15 Accordingly, we now reject the rule of Spector Motor Service, Inc. v. O'Connor, that a state tax on the 'privilege of doing business' is per se unconstitutional when it is applied to interstate commerce, and that case is overruled.
41
There being no objection to Mississippi's tax on appellant except that it was imposed on nothing other than the 'privilege of doing business' that is interstate, the judgment of the Supreme Court of Mississippi is affirmed.
42
It is so ordered.
1
The statute is now § 27-65-13 of the State's 1972 Code.
2
This statute is now § 27-65-19(2) of the 1972 Code. It was amended, effective August 1, 1972, to exclude the transportation of property 1972 Miss. Laws, c. 506, § 2.
Section 10109, as codified in 1942, imposed a tax on gross income from all transportation, with gross income defined to exclude 'so much thereof as is derived from business conducted in commerce between this State and other States of the United States . . . which the State of Mississippi is prohibited from taxing under the Constitution of the United States of America.' In 1955, this exclusionary language was eliminated and the statute was amended to cover only transportation 'between points within this state.' 1955 Miss. Laws, c. 109, § 10. The amendment gave the statute essentially the form it possessed during the period relevant here.
It might be argued that the statute as so amended evinces an intent to reach only intrastate commerce, and that it should be so construed. Appellant, however, does not make that argument, and the Supreme Court of Mississippi clearly viewed that statute as applying to both intrastate commerce and interstate commerce.
We are advised by the appellee that the tax has been applied only to commercial transactions in which a distinct service is performed and payment made for transportation from one point within the State to another point within the State. Tr. of Oral Arg. 34-35, 38.
3
This statute is now § 27-65-31 of the 1972 Code. Violation of the requirements of the section is a misdemeanor. Ibid.
4
The parties understandably go to great pains to describe the details of the bills of lading, and the responsibility of various entities for the vehicles as they travel from the assembly plant to the dealers. Appellant seeks to demonstrate that the transportation it provides from the railhead to the dealers is part of a movement in interstate commerce. Appellee argues that appellant's transportation is intrastate business, but further argues that even if the activity is part of interstate commerce, the tax is not unconstitutional. Brief for Appellant 11-14; Brief for Appellee 12-24; Reply Brief for Appellant 14-16. The Mississippi courts, in upholding the tax, assumed that the transportation is in interstate commerce. For present purposes, we make the same assumption.
5
Although appellant had been operating in Mississippi since 1960, App. 77, the state audit and assessment covered only the period beginning August 1, 1968. Id., at 37-38. No effort had been made to apply the tax to appellant for any period prior to that date.
6
See Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977); General Motors Corp. v. Washington, 377 U.S. 436, 84 S.Ct. 1564, 12 L.Ed.2d 430 (1964); Illinois Cent. R. Co. v. Minnesota, 309 U.S. 157, 60 S.Ct. 419, 84 L.Ed. 670 (1940); Ingels v. Morf, 300 U.S. 290, 57 S.Ct. 439, 81 L.Ed. 653 (1937). See also Standard Steel Co. v. Washington Rev. Dept., 419 U.S. 560, 95 S.Ct. 706, 42 L.Ed.2d 719 (1975), and Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939).
7
The Court summarized the 'free trade' view in Freeman v. Hewit, 329 U.S., at 252, 67 S.Ct. at 276:
'(T)he Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but by its own force created an area of trade free from interference by the States. In short, the Commerce Clause even without implementing legislation by Congress is a limitation upon the power of the States. . . . This limitation on State power . . . does not merely forbid a State to single out interstate commerce for hostile action. A State is also precluded from taking any action which may fairly be deemed to have the effect of impeding the free flow of trade between States. It is immaterial that local commerce is subjected to a similar encumbrance.'
8
See, e. g., General Motors Corp. v. Washington, supra; Northwestern Cement Co. v. Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959); Memphis Gas Co. v. Stone, 335 U.S. 80, 68 S.Ct. 1475, 92 L.Ed. 1832 (1948); Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 249, 85 L.Ed. 267 (1940).
9
Although we mention Freeman as the starting point, elements of the views expressed therein, and the positions that underlie that debate, were evident in prior opinions. Compare State Tax on Railway Gross Receipts, 15 Wall. (82 U.S.) 284, 21 L.Ed. 164 (1873), with Fargo v. Michigan, 121 U.S. 230, 7 S.Ct. 857, 30 L.Ed. 888 (1887); and compare Di Santo v. Pennsylvania, 273 U.S. 34, 47 S.Ct. 267, 71 L.Ed. 524 (1927), and Cooney v. Mountain States Tel. Co., 294 U.S. 384, 55 S.Ct. 477, 79 L.Ed. 934 (1935), with Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823 (1938). See generally P. Hartman, State Taxation of Interstate Commerce (1953); Barrett, State Taxation of Interstate Commerce 'Direct Burdens,' 'Multiple Burdens,' or What Have You?, 4 Vand.L.Rev. 496 (1951), and writings cited therein at 496 n. 1; Dunham, Gross Receipts Taxes on Interstate Transactions, 47 Colum.L.Rev. 211 (1947).
10
Mr. Justice Rutledge agreed with the result the Court reached in Freeman because of his belief that the apportionment problem was best solved if States other than the market State were forbidden to impose unapportioned gross receipts taxes of the kind Indiana sought to exact.
11
A consistent application of the doctrine of immunity for interstate commerce, of course, would have necessitated overruling the cases approved by the Freeman Court that upheld taxes whose burden, although indirect, fell on interstate commerce.
12
In arriving at this conclusion, the dissent relied upon a construction of a stipulation entered into by the parties, 335 U.S., at 100-101, 68 S.Ct., at 1485-86, and upon an independent review of the record. The plurality rejected the dissent's reading of the stipulation and noted, in addition, that the question presented in the petition for certiorari did not raise a claim that the State was providing no service for which it could ask recompense. Id., at 83-84, 68 S.Ct., at 1476-77. The plurality then relied on the Supreme Court of Mississippi's holding that the State did provide protection that could properly be the subject of a tax.
13
Five Members of the Court joined in the opinion distinguishing Spector. Two concurred in the judgment, but viewed Spector as indistinguishable and would have overruled it. 421 U.S., at 114-116, 95 S.Ct., at 1546-47. One also viewed Spector as indistinguishable, but felt that it was an established precedent until forthrightly overruled. Id., at 116, 95 S.Ct., at 1547. Mr. Justice Douglas took no part.
14
Less charitably put: 'In light of the expanding scope of the state taxing power over interstate commerce, Spector is an anachronism. . . . Continued adherence to Spector, especially after Northwestern States Portland Cement, cannot be justified.' Comment, Pipelines, Privileges and Labels: Colonial Pipeline Co. v. Traigle, 70 Nw.U.L.Rev. 835, 854 (1975).
15
It might be argued that 'privilege' taxes, by focusing on the doing of business, are easily tailored to single out interstate businesses and subject them to effects forbidden by the Commerce Clause, and that, therefore, 'privilege' taxes should be subjected to a per se rule against their imposition on interstate business. Yet property taxes also may be tailored to differentiate between property used in transportation and other types of property, see Railway Express II, 358 U.S. 434, 79 S.Ct. 411, 3 L.Ed.2d 450 (1959); an income tax could use different rates for different types of business; and a tax on the 'privilege of doing business in corporate form' could be made to change with the nature of the corporate activity involved. Any tailored tax of this sort creates an increased danger of error in apportionment, of discrimination against interstate commerce, and of a lack of relationship to the services provided by the State. See Freeman v. Hewit, 329 U.S., at 265-266, n. 13, 67 S.Ct., at 283 (concurring opinion). A tailored tax, however accomplished, must receive the careful scrutiny of the courts to determine whether it produces a forbidden effect on interstate commerce. We perceive no reason, however, why a tax on the 'privilege of doing business' should be viewed as creating a qualitatively different danger so as to require a per se rule of unconstitutionality.
It might also be argued that adoption of a rule of absolute immunity for interstate commerce (a rule that would, of course, go beyond Spector) would relieve this Court of difficult judgments that on occasion will have to be made. We believe, however, that administrative convenience, in this instance, is insufficient justification for abandoning the principle that 'interstate commerce may be made to pay its way.'
| 78
|
430 U.S. 290
97 S.Ct. 1056
51 L.Ed.2d 338
Joy A. FARMER, Special Administrator, Petitioner,v.UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 25, et al.
No. 75-804.
Argued Nov. 8, 1976.
Decided March 7, 1977.
Syllabus
A member and officer (petitioner's decedent) of respondent local carpenters' union brought a tort action for damages in California state court against respondent Unions and Union officials, alleging in count two of the complaint that, because of a sharp disagreement between him and union officials over various internal Union Policies, respondents had intentionally engaged in outrageous conduct, threats, and intimidation, and had thereby caused him to suffer emotional distress resulting in bodily injury; and alleging in other counts that respondent local Union had discriminated against him in referrals for employment in its hiring hall because of his dissendent intra-union political activities, that the Union had breached the hiring hall provisions of the collective-bargaining agreement with a contractors association by failing to refer him on a nondiscriminatory basis, and that such failure to comply with the collective-bargaining agreement also breached his membership contract with the Union. The trial court sustained a demurrer to the allegations of discrimination and breach of contract on the ground that federal law pre-empted state jurisdiction over them, but allowed the case to go to trial on count two. The jury returned a verdict of actual and punitive damages for the plaintiff, and the trial court entered a judgment on the verdict. The California Court of Appeal reversed, holding that state courts had no jurisdiction over the complaint since the 'crux' of the action concerned employment relations and involved conduct arguably subject to the National Labor Relations Board's jurisdiction. Held:
1. The National Labor Relations Act does not pre-empt the action for intentional infliction of emotional distress. Pp. 295-306.
(a) No provision of the NLRA protects the 'outrageous conduct' complained of in count two, and regardless of whether the operation of the hiring hall was lawful or unlawful under federal statutes, there is no federal protection for union officers' conduct that is so outrageous that 'no reasonable man in a civilized society should be expected to endure it.' Hence, permitting the state courts to exercise jurisdiction over such complaints does not result in state regulation of federally protected conduct. Pp. 301-302.
(b) The State, on the other hand, has a substantial interest in protecting its citizens from the kind of abuse of which the plaintiff complained, and that interest is no less worthy of recognition because it concerns protection from emotional distress caused by outrageous conduct, rather than protection from physical injury or damage to reputation. Pp. 302-303.
(c) Viewed in light of the discrete concerns of the federal scheme of labor regulation and the state tort law, the potential for interference with the federal scheme by the state cause of action is insufficient to counterbalance the legitimate and substantial interest of the State in protecting its citizens, since the state tort action can be resolved without reference to any accommodation of the special interests of unions and members in the hiring hall context. Pp. 304-305.
(d) To permit concurrent state-court jurisdiction it is essential that the state tort be either unrelated to employment discrimination or a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function of the actual or threatened discrimination itself. P. 305.
2. It is clear from the record that the trial of the claim for intentional infliction of emotional distress did not meet the above standards, since the evidence supporting the verdict for the plaintiff focuses less on the alleged 'outrageous conduct' complained of than on employment discrimination; hence the consequent risk that the verdict represented damages for employment discrimination rather than for instances of intentional infliction of emotional distress precludes reinstatement of the trial court's judgment. P. 306.
49 Cal.App.3d 614, 122 Cal.Rptr. 722, vacated and remanded.
G. Dana Hobart, Los Angeles, Cal., for petitioner.
Leo Geffner, Los Angeles, Cal., for respondents.
Norton J. Come, Washington, D. C., for N. L. R. B., as amicus curiae, by special leave of Court.
Mr. Justice POWELL delivered the opinion of the Court.
1
The issue in this case is whether the National Labor Relations Act, as amended, pre-empts a tort action brought in state court by a union member against the Union and its officials to recover damages for the intentional infliction of emotional distress.
2
* Petitioner Richard T. Hill1 was a carpenter and a member of Local 25 of the United Brotherhood of Carpenters and Joiners of America. Local 25 (Union) operates an exclusive hiring hall for employment referral of carpenters in the Los Angeles area. In 1965, Hill was elected to a three-year term as vice president of the Union. Shortly thereafter sharp disagreement developed between Hill and the Union Business Agent, Earl Daley, and other Union officials over various internal Union policies. According to Hill, the Union then began to discriminate against him in referrals to employers, prompting him to complain about the hiring hall operation within the Union and to the District Council and the International Union. Hill claims that as a result of these complaints he was subjected to a campaign of personal abuse and harassment in addition to continued discrimination in referrals from the hiring hall.2
3
In April 1969 petitioner filed in Superior Court for the County of Los Angeles an action for damages against the Union, the District Council and the International with which the Union was affiliated, and certain officials of the Union, including Business Agent Daley. In count two of his amended complaint, Hill alleged that the defendants had intentionally engaged in outrageous conduct, threats, and intimidation, and had thereby caused him to suffer grievous emotional distress resulting in bodily injury. In three other counts, he alleged that the Union had discriminated against him in referrals for employment because of his dissident intra-Union political activities, that the Union had breached the hiring hall provisions of the collective-bargaining agreement between it and a contractors association by failing to refer him on a nondiscriminatory basis, and that the failure to comply with the collective-bargaining agreement also constituted a breach of his membership contract with the Union. He sought $500,000 in actual, and $500,000 in punitive, damages.
4
The Superior Court sustained a demurrer to the allegations of discrimination and breach of contract on the ground that federal law pre-empted state jurisdiction over them, but allowed the case to go to trial on the allegations in count two.3 Hill attempted to prove that the Union's campaign against him included 'frequent public ridicule,' 'incessant verbal abuse,' and refusals to refer him to jobs in accordance with the rules of the hiring hall. The defendants countered with evidence that the hiring hall was operated in a nondiscriminatory manner. The trial court instructed the jury that in order to recover damages Hill had to prove by a preponderance of the evidence that the defendants intentionally and by outrageous conduct had caused him to suffer severe emotional distress. The court defined severe emotional distress as 'any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, or worr(y).' The injury had to be 'severe,' which in this context meant
5
'substantial or enduring, as distinguished from trivial or transitory. It must be of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it. Liability does not extend to mere insults, indignities, annoyances, petty or other trivialities.'
6
The court also instructed that the National Labor Relations Board would not have jurisdiction to compensate petitioner for injuries such as emotional distress, pain and suffering, and medical expenses, nor would it have authority to award punitive damages. The court refused to give a requested instruction to the effect that the jury could not consider any evidence regarding discrimination with respect to employment opportunities or hiring procedures.
7
The jury returned a verdict of $7,500 actual damages and $175,000 punitive damages against the Union, the District Council, and Business Agent Daley, and the trial court entered a judgment on the verdict.4
8
The California Court of Appeal reversed. 49 Cal.App.3d 614, 122 Cal.Rptr. 722. Relying on this Court's decisions in Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971); Plumbers v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963); Iron Workers v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646 (1963); and San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), the Court of Appeal held that the state courts had no jurisdiction over the complaint since the 'crux' of the action concerned employment relations and involved conduct arguably subject to the jurisdiction of the National Labor Relations Board. The Court remanded 'with instructions to render judgment for the defendants and dismiss the action.' 49 Cal.App.3d, at 631, 122 Cal.Rptr., at 732. The California Supreme Court denied review.
9
We granted certiorari to consider the applicability of the pre-emption doctrine to cases of this nature, 423 U.S. 1086, 96 S.Ct. 876, 47 L.Ed.2d 96 (1976). For the reasons set forth below we vacate the judgment of the Court of Appeal and remand for further proceedings.
II
10
The doctrine of pre-emption in labor law has been shaped primarily by two competing interests.5 On the one hand, this Court has recognized that 'the broad powers conferred by Congress upon the National Labor Relations Board to interpret and to enforce the complex Labor Management Relations Act . . . necessarily imply that potentially conflicting 'rules of law, of remedy, and of administration' cannot be permitted to operate.' Vaca v. Sipes, 386 U.S. 171, 178-179, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967), quoting San Diego Bldg. Trades Council v. Garmon, supra, at 242, 79 S.Ct., at 778. On the other hand, because Congress has refrained from providing specific directions with respect to the scope of pre-empted state regulation, the Court has been unwilling to 'declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions . . ..' Motor Coach Employees v. Lockridge, supra, at 289, 91 S.Ct., at 1919. Judicial experience with numerous approaches to the pre-emption problem in the labor law area eventually led to the general rule set forth in Garmon, supra, at 244, 79 S.Ct., at 779, and recently reaffirmed in both Lockridge, supra, at 291, 91 S.Ct., at 1920, and Machinists v. Wisconsin Emp. Rel. Comm'n, 427 U.S. 132, 138-139, 96 S.Ct. 2548, 2552, 49 L.Ed.2d 396 (1976):
11
'When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger or conflict between power asserted by Congress and requirements imposed by state law.' 359 U.S., at 244, 79 S.Ct., at 779.6
12
But the same considerations that underlie the Garmon rule have led the Court to recognize exceptions in appropriate classes of cases.7 We have refused to apply the pre-emption doctrine to activity that otherwise would fall within the scope of Garmon if that activity 'was a merely peripheral concern of the Labor Management Relations Act . . . (or) touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.' Id., at 243-244, 79 S.Ct., at 779. See, e. g., Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966) (malicious libel); Automobile Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958) (mass picketing and threats of violence); Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958) (wrongful expulsion from union membership). We also have refused to apply the pre-emption doctrine 'where the particular rule of law sought to be invoked before another tribunal is so structured and administered that, in virtually all instances, it is safe to presume that judicial supervision will not disserve the interests promoted by the federal labor statutes.' Motor Coach Employees v. Lockridge, supra, at 297-298, 91 S.Ct., at 1923. See Vaca v. Sipes, supra (duty of fair representation cases).8
13
These exceptions 'in no way undermine the vitality of the pre-emption rule.' 386 U.S., at 180, 87 S.Ct., at 911. To the contrary, they highlight our responsibility in a case of this kind to determine the scope of the general rule by examining the state interests in regulating the conduct in question and the potential for interference with the federal regulatory scheme.
14
The nature of the inquiry is perhaps best illustrated by Linn v. Plant Guard Workers, supra. Linn, an assistant manager of Pinkerton's National Detective Agency, filed a diversity action in federal court against a union, two of its officers, and a Pinkerton employee, alleging that the defendants had circulated a defamatory statement about him in violation of state law. If unfair labor practice charges had been filed, the Board might have found that the union violated § 8 by intentionally circulating false statements during an organizational campaign, or that the issuance of the malicious statements during the campaign had such a significant effect as to require that the election be set aside. Under a formalistic application of Garmon, the libel suit could have been pre-empted.
15
But a number of factors influenced the Court to depart from the Garmon rule. First, the Court noted that the underlying conduct the intentional circulation of defamatory material known to be false was not protected under the Act, 383 U.S., at 61, 86 S.Ct., at 662, and there was thus no risk that permitting the state cause of action to proceed would result in state regulation of conduct that Congress intended to protect. Second, the Court recognized that there was "an overriding state interest" in protecting residents from malicious libels, and that this state interest was "deeply rooted in local feeling and responsibility." Id., at 61, 62, 86 S.Ct., at 663. Third, the Court reasoned that there was little risk that the state cause of action would interfere with the effective administration of national labor policy. The Board's § 8 unfair labor practice proceeding would focus only on whether the statements were misleading or coercive; whether the statements also were defamatory would be of no relevance to the Board's performance of its functions. Id., at 63, 86 S.Ct., at 663. Moreover, the Board would lack authority to provide the defamed individual with damages or other relief. Ibid. Conversely, the state-law action would be unconcerned with whether the statements were coercive or misleading in the labor context, and in any event the court would have power to award Linn relief only if the statements were defamatory. Taken together, these factors justified an exception to the pre-emption rule.
16
The Court was careful, however, to limit the scope of that exception. To minimize the possibility that state libel suits would either dampen the free discussion characteristic of labor disputes or become a weapon of economic coercion, the Court adopted by analogy the standards enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and held that state damages actions in this context would escape pre-emption only if limited to defamatory statements published with knowledge or reckless disregard of their falsity. The Court also held that a complainant could recover damages only upon proof that the statements had caused him injury, including general injury to reputation, consequent mental suffering, alienation of associates, specific items of pecuniary loss, or any other form of harm recognized by state tort law. The Court stressed the responsibility of the trial judge to assure that damages were not excessive.
17
Similar reasoning underlies the exception to the pre-emption rule in cases involving violent tortious activity. Nothing in the federal labor statutes protects or immunizes from state action violence or the threat of violence in a labor dispute, Automobile Workers v. Russell, 356 U.S., at 640, 78 S.Ct., at 935; id., at 649, 78 S.Ct., at 941 (Warren, C. J., dissenting); United Constr. Workers v. Laburnum Construction Corp., 347 U.S. 656, 666, 74 S.Ct. 833, 838, 98 L.Ed. 1025 (1954), and thus there is no risk that state damages actions will fetter the exercise of rights protected by the NLRA. On the other hand, our cases consistently have recognized the historic state interest in 'such traditionally local matters as public safety and order and the use of streets and highways.' Allen-Bradley Local v. Wisconsin Emp. Rel. Bd., 315 U.S. 740, 749, 62 S.Ct. 820, 825, 86 L.Ed. 1154 (1942). And, as with the defamation actions preserved by Linn, state-court actions to redress injuries caused by violence or threats of violence are consistent with effective administration of the federal scheme: Such actions can be adjudicated without regard to the merits of the underlying labor controversy. Automobile Workers v. Russell, supra, 356 U.S., at 649, 78 S.Ct., at 941 (Warren, C. J., dissenting).
18
Although cases like Linn and Russell involve state-law principles with only incidental application to conduct occurring in the course of a labor dispute, it is well settled that the general applicability of a state cause of action is not sufficient to exempt it from pre-emption. '(I)t (has not) mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations.'9 Garmon, 359 U.S., at 244, 79 S.Ct., at 779. Instead, the cases reflect a balanced inquiry into such factors as the nature of the federal and state interests in regulation and the potential for interference with federal regulation. As was said in Vaca v. Sipes, 386 U.S., at 180, 87 S.Ct., at 911, our cases 'demonstrate that the decision to pre-empt federal and state court jurisdiction over a given class of cases must depend upon the nature of the particular interests being asserted and the effect upon the administration of national labor policies of concurrent judicial and administrative remedies.'10
III
19
In count two of his amended complaint, see supra, at 293, Hill alleged that the defendants had intentionally engaged in 'outrageous conduct, threats, intimidation, and words' which caused Hill to suffer 'grievous mental and emotional distress as well as great physical damage.' In the context of Hill's other allegations of discrimination in hiring hall referrals, these allegations of tortious conduct might form the basis for unfair labor practice charges before the Board. On this basis a rigid application of the Garmon doctrine might support the conclusion of the California courts that Hill's entire action was preempted by federal law. Our cases indicate, however, that inflexible application of the doctrine is to be avoided, especially where the State has a substantial interest in regulation of the conduct at issue and the State's interest is one that does not threaten undue interference with the federal regulatory scheme. With respect to Hill's claims of intentional infliction of emotional distress, we cannot conclude that Congress intended exclusive jurisdiction to lie in the Board.
20
No provision of the National Labor Relations Act protects the 'outrageous conduct' complained of by petitioner Hill in the second count of the complaint. Regardless of whether the operation of the hiring hall was lawful or unlawful under federal statutes, there is no federal protection for conduct on the part of union officers which is so outrageous that 'no reasonable man in a civilized society should be expected to endure it.' See supra, at 294. Thus, as in Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), and Automobile Workers v. Russell, supra, permitting the exercise of state jurisdiction over such complaints does not result in state regulation of federally protected conduct.
21
The State, on the other hand, has a substantial interest in protecting its citizens from the kind of abuse of which Hill complained. That interest is no less worthy of recognition because it concerns protection from emotional distress caused by outrageous conduct, rather than protection from physical injury, as in Russell, or damage to reputation, as in Linn. Although recognition of the tort of intentional infliction of emotional distress is a comparatively recent development in state law, see W. Prosser, Law of Torts, § 12, pp. 49-50, 56 (4th ed. 1971), our decisions permitting the exercise of state jurisdiction in tort actions based on violence or defamation have not rested on the history of the tort at issue, but rather on the nature of the State's interest in protecting the health and well-being of its citizens.
22
There is, to be sure, some risk that the state cause of action for infliction of emotional distress will touch on an area of primary federal concern. Hill's complaint itself highlights this risk. In those counts of the complaint that the trial court dismissed, Hill alleged discrimination against him in hiring hall referrals, which were also alleged to be violations of both the collective-bargaining agreement and the membership contract. These allegations, if sufficiently supported before the National Labor Relations Board, would make out an unfair labor practice11 and the Superior Court considered them pre-empted by the federal Act.12 Even in count two of the complaint Hill made allegations of discrimination in 'job-dispatching procedures' and 'work assignments' which, standing alone, might well be pre-empted as the exclusive concern of the Board. The occurrence of the abusive conduct, with which the state tort action is concerned, in such a context of federally prohibited discrimination suggests a potential for interference with the federal scheme of regulation.
23
Viewed, however, in light of the discrete concerns of the federal scheme and the state tort law, that potential for interference is insufficient to counterbalance the legitimate and substantial interest of the State in protecting its citizens. If the charges in Hill's complaint were filed with the Board, the focus of any unfair labor practice proceeding would be on whether the statements or conduct on the part of Union officials discriminated or threatened discrimination against him in employment referrals for reasons other than failure to pay Union dues. See n. 11, supra. Whether the statements or conduct of the respondents also caused Hill severe emotional distress and physical injury would play no role in the Board's disposition of the case, and the Board could not award Hill damages for pain, suffering, or medical expenses. Conversely, the state-court tort action can be adjudicated without resolution of the 'merits' of the underlying labor dispute. Recovery for the tort of emotional distress under California law requires proof that the defendant intentionally engaged in outrageous conduct causing the plaintiff to sustain mental distress. State Rubbish Collectors Assn. v. Siliznoff, 38 Cal.2d 330, 240 P.2d 282 (1952); Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216 (1970). The state court need not consider, much less resolve, whether a union discriminated or threatened to discriminate against an employee in terms of employment opportunities. To the contrary, the tort action can be resolved without reference to any accommodation of the special interests of unions and members in the hiring hall context.
24
On balance, we cannot conclude that Congress intended to oust state-court jurisdiction over actions for tortious activity such as that alleged in this case. At the same time, we reiterate that concurrent state-court jurisdiction cannot be permitted where there is a realistic threat of interference with the federal regulatory scheme. Union discrimination in employment opportunities cannot itself form the underlying 'outrageous' conduct on which the state-court tort action is based; to hold otherwise would undermine the pre-emption principle. Nor can threats of such discrimination suffice to sustain state-court jurisdiction. It may well be that the threat, or actuality, of employment discrimination will cause a union member considerable emotional distress and anxiety. But something more is required before concurrent state-court jurisdiction can be permitted. Simply stated, it is essential that the state tort be either unrelated to employment discrimination or a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function of the actual or threatened discrimination itself.13
25
Two further limitations deserve emphasis. Our decision rests in part on our understanding that California law permits recovery only for emotional distress sustained as a result of 'outrageous' conduct. The potential for undue interference with federal regulation would be intolerable if state tort recoveries could be based on the type of robust language and clash of strong personalities that may be commonplace in various labor contexts. We also repeat that state trial courts have the responsibility in cases of this kind to assure that the damages awarded are not excessive. See Linn v. Plant Guard Workers, 383 U.S., at 65-66, 86 S.Ct., at 664.
IV
26
Although the second count of petitioner's complaint alleged the intentional infliction of emotional distress, it is clear from the record that the trial of that claim was not in accord with the standards discussed above. The evidence supporting the verdict in Hill's favor focuses less on the alleged campaign of harassment, public ridicule, and verbal abuse, than on the discriminatory refusal to dispatch him to any but the briefest and least desirable jobs;14 and no appropriate instruction distinguishing the two categories of evidence was given to the jury. See n. 13, supra. The consequent risk that the jury verdict represented damages for employment discrimination rather than for instances of intentional infliction of emotional distress precludes reinstatement of the judgment of the Superior Court.
27
The judgment of the Court of Appeal is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.15
28
It is so ordered.
1
Hill died after the petition for a writ of certiorari was granted. On June 1, 1976, Joy A. Farmer, special administrator of Hill's estate, was substituted as petitioner. We will refer to Hill as the petitioner.
2
According to Hill, the Union accomplished this discrimination by removing his name from the top of the out-of-work list and placing it at the bottom, by referring him to jobs of short duration when more desirable work was available, and by referring him to jobs for which he was not qualified.
3
Hill did not appeal the Superior Court's ruling sustaining the demurrer with respect to the claims of discrimination and breach of contract, and we thus have no occasion to consider the applicability of the pre-emption doctrine to those counts.
4
Hill voluntarily dismissed the complaint against the International and one Union official, the trial court dismissed the complaint with respect to another Union official, and the jury entered a verdict in favor of two other Union officials.
5
'(I)n referring to decisions holding state laws pre-empted by the NLRA, care must be taken to distinguish pre-emption based on federal protection of the conduct in question . . . from that based predominantly on the primary jurisdiction of the National Labor Relations Board . . ., although the two are often not easily separable.' Railroad Trainmen v. Jacksonville Terminal co., 394 U.S. 369, 383 n. 19, 89 S.Ct. 1109, 1118, 22 L.Ed.2d 344 (1969). The branch of the pre-emption doctrine most applicable to the instant case concerns the primary jurisdiction of the National Labor Relations Board.
6
The history of the garmon doctrine was recently summarized in Motor Coach Employees v. Lockridge, 403 U.S., at 290-291, 91 S.Ct., at 1919-1920, and in Machinists v. Wisconsin Emp. Rel. Comm'n, 427 U.S., at 138-139, 96 S.Ct., at 2552.
7
'(W)e (cannot) proceed on a case-by-case basis to determine whether each particular final judicial pronouncement does, or might reasonably be thought to, conflict in some relevant manner with federal labor policy. This Court is ill-equipped to play such a role and the federal system dictates that this problem be solved with a rule capable of relatively easy application, so that lower courts may largely police themselves in this regard.' Motor Coach Employees v. Lockridge, supra, at 289-290, 91 S.Ct., at 1919.
8
In addition to the judicially developed exceptions referred to in the text, Congress itself has created exceptions to the Board's exclusive jurisdiction in other classes of cases. Section 303 of the Labor Management Relations Act, 1947, 61 Stat. 158, as amended, 29 U.S.C. § 187, authorizes anyone injured in his business or property by activity violative of § 8(b)(4) of the NLRA, 61 Stat. 140, as amended, 29 U.S.C. § 158(b)(4), to recover damages in federal district court even though the underlying unfair labor practices are remediable by the Board. See Teamsters v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964). Section 301 of the LMRA, 29 U.S.C. § 185, authorizes suits for breach of a collective-bargaining agreement even if the breach is an unfair labor practice within the Board's jurisdiction. See Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). Section 14(c)(2) of the NLRA, as added by Title VII, § 701(a) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 541, 29 U.S.C. § 164(c)(2), permits state agencies and state courts to assert jurisdiction over 'labor disputes over which the Board declines, pursuant to paragraph (1) of this subsection, to assert jurisdiction.'
9
In Plumbers v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963), for example, an employee sued his union, which operated a hiring hall, claiming that the union had arbitrarily refused to refer him for employment on one particular occasion. He alleged that the union's conduct constituted both tortious interference with his right to contract for employment and breach of a promise, implicit in his membership arrangement with the union, not to discriminate unfairly against any member or deny him the right to work. Under these circumstances, concurrent state-court jurisdiction would have impaired significantly the functioning of the federal system. If unfair labor practice charges had been filed, the Board might have concluded that the refusal to refer Borden was due to a lawful hiring hall practice, see Teamsters v. NLRB, 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11 (1961). Board approval of various hiring hall practices would be meaningless if state courts could declare those procedures violative of the contractual rights implicit between a member and his union. Accordingly, the state cause of action was pre-empted under Garmon. Similar reasoning prompted the Court to apply the Garmon rule in the companion case of Iron Workers v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646 (1963).
10
Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958), established another exception to the general rule of preemption for state-law actions alleging expulsion from union membership in violation of the applicable union constitution and bylaws and seeking restoration to membership and damages due to the illegal expulsion. Gonzales was decided prior to this Court's adoption in Garmon of the current pre-emption test, and our decision in Lockridge makes it clear that 'the full-blown rationale of Gonzales could not survive the rule of Garmon.' Lockridge, 403 U.S. at 295, 91 S.Ct., at 1922. At the same time, we stated that 'Garmon, did not cast doubt upon the result reached in Gonzales,' id., at 295, 91 S.Ct., at 1922, since Garmon cited Gonzales as an example of the nonapplicability of the normal pre-emption rule 'where the activity regulated was a merely peripheral concern of the . . . Act.' 359 U.S., at 243, 79 S.Ct., at 779.
Although the Lockridge decision has been the subject of extensive criticism, see, e. g. Bryson, A Matter of Wooden Logic: Labor Law Preemption and Individual Rights, 51 Texas L.Rev. 1037, 1050-1058 (1973); Cox, Labor Law Preemption Revisited, 85 Harv.L.Rev. 1337, 1368-1377 (1972), the instant case presents no occasion for us to reconsider the relationship between Lockridge and Gonzales. Whatever the scope of Gonzales after Garmon and Lockridge, the analysis used by the Court in those cases is consistent with the framework discussed in the text above. Lockridge held that the state-court action at issue involved a 'real and immediate' potential for conflict with the federal scheme, 403 U.S., at 296, 91 S.Ct., at 1922, whereas the possibility that the state court in Gonzales 'would directly and consciously implicate principles of federal law' was considered 'at best tangential and remote.' Ibid.
11
Discrimination in hiring hall referrals constitutes an unfair labor practice under §§ 8(b)(1)(A) and 8(b)(2) of the NLRA. See, e. g., Radio Officers v. NLRB, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455 (1954); Operating Engineers Local 18, 205 N.L.R.B. 901 (1973), enf'd, 500 F.2d 48 (CA6 1974).
Prior to the filing of this suit, Hill filed an unfair labor practice charge with the Board with respect to one specific instance of alleged discrimination. He alleged that the Union violated §§ 8(b)(1)(A) and 8(b)(2) by refusing to honor an employer's request that he be referred for employment on a particular construction job. The Board awarded Hill $2,517 in backpay.
12
Whether a hiring hall practice is discriminatory and therefore violative of federal law is a determination Congress has entrusted to the Board. See Teamsters v. NLRB, 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11 (1961). Whether there is federal pre-emption with respect to allegations of breach of a contractual obligation depends upon the nature of the obligation and the alleged breach. See Motor Coach Employees v. Lockridge, 403 U.S., at 292-297, 298-301, 91 S.Ct., at 1920-1923, 1925. Casting a complaint in terms of breach of a membership agreement does not necessarily insulate a state-court action from application of the pre-emption doctrine. See n. 9, supra. Allegations of breach of the contract between the union and the employer stand on different ground, since, as noted earlier, § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, authorizes suits for breach of a collective-bargaining agreement even if the breach is an unfair labor practice within the Board's jurisdiction. See n. 8, supra.
13
In view of the potential for interference with the federal scheme of regulation, the trial court should be sensitive to the need to minimize the jury's exposure to evidence of employment discrimination in cases of this sort. Where evidence of discrimination is necessary to establish the context in which the state claim arose, the trial court should instruct the jury that the fact of employment discrimination (as distinguished from attendant tortious conduct under state law) should not enter into the determination of liability or damages.
14
Almost the entire section of petitioner's brief summarizing the trial transcript, see Brief for Petitioner 4-10, is directed at instances of Union discrimination against Hill with respect to employment opportunities. Moreover, counsel for petitioner, who was also petitioner's trial counsel, indicated at oral argument that the focus of the trial was on employment discrimination rather than the intentional infliction of emotion distress: 'We had to show simply two easy issues to the jury: one, what the (hiring hall) rules were; and two, were they fairly applied.' Tr. of Oral Arg. 69. It is plain that those two elements are more relevant to the issue of discriminatory referrals than to the issue of infliction of emotional distress.
Respondents concede that '(t)he allegations made in the plaintiff's second cause of action . . . sound in the state tort law of intentional infliction of emotional distress,' but contend that the dominant focus of the evidence adduced at trial was on discriminatory hiring hall referrals. Brief for Respondents 28.
15
We, of course, express no view on the question whether those aspects of the case that are not pre-empted are sufficient under state law to amount to conduct 'that no reasonable man in a civilized society should be expected to endure.'
| 910
|
430 U.S. 308
97 S.Ct. 1045
51 L.Ed.2d 355
OKLAHOMA PUBLISHING COMPANYv.DISTRICT COURT IN AND FOR OKLAHOMA COUNTY, Oklahoma, et al.
No. 76-867.
March 7, 1977.
PER CURIAM.
1
A pretrial order entered by the District Court of Oklahoma County enjoined members of the news media from 'publishing, broadcasting, or disseminating, in any manner, the name or picture of (a) minor child' in connection with a juvenile proceeding involving that child then pending in that court. On application for prohibition and mandamus challenging the order as a prior restraint on the press violative of the First and Fourteenth Amendments, the Supreme Court of the State of Oklahoma sustained the order. This Court entered a stay pending the timely filing and disposition of a petition for certiorari. 429 U.S. 967, 97 S.Ct. 430, 50 L.Ed.2d 578 (1976). We now grant the petition for certiorari and reverse the decision below.
2
A railroad switchman was fatally shot on July 26, 1976. On July 29, 1976, an 11-year-old boy, Larry Donnell Brewer, appeared at a detention hearing in Oklahoma County Juvenile Court on charges filed by state juvenile authorities alleging delinquency by second-degree murder in the shooting of this switchman. Reporters, including one from petitioner's newspapers, were present in the courtroom during the hearing and learned the juvenile's name. As the boy was escorted from the courthouse to a vehicle, one of petitioner's photographers took his picture. Thereafter, a number of stories using the boy's name and photograph were printed in newspapers within the county, including petitioner's three newspapers in Oklahoma City; radio stations broadcast his name and television stations showed film footage of him and identified him by name.
3
On August 3, 1976, the juvenile was arraigned at a closed hearing, at which the judge entered the pretrial order involved in this case.1 Additional news reports identifying the juvenile appeared on August 4 and 5. On August 16, the District Court denied petitioner's motion to quash the order. The Oklahoma Supreme Court then denied petitioner's writ of prohibition and mandamus, relying on Oklahoma statutes providing that juvenile proceedings are to be held in private 'unless specifically ordered by the judge to be conducted in public,' and that juvenile records are open to public inspection 'only by order of the court to persons having a legitimate interest therein.' Okl.Stat.Ann., Tit. 10, §§ 1111, 1125 (Supp.1976).
4
As we noted in entering our stay of the pretrial order, petitioner does not challenge the constitutionality of the Oklahoma statutes relied on by the court below. Petitioner asks us only to hold that the First and Fourteenth Amendments will not permit a state court to prohibit the publication of widely disseminated information obtained at court proceedings which were in fact open to the public. We think this result is compelled by our recent decisions in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), and Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975).
5
In Cox Broadcasting the Court held that a State could not impose sanctions on the accurate publication of the name of a rape victim 'which was publicly revealed in connection with the prosecution of the crime.' Id., at 471, 95 S.Ct., at 1034. There, a reporter learned the identity of the victim from an examination of indictments made available by a clerk for his inspection in the courtroom during a recess of court proceedings against the alleged rapists. The Court expressly refrained from intimating a view on any constitutional questions arising from a state policy of denying the public or the press access to official records of juvenile proceedings, id., at 496 n. 26, 95 S.Ct. at 1047, but made clear that the press may not be prohibited from 'truthfully publishing information released to the public in official court records.' Id., at 496, 95 S.Ct., at 1047.
6
This principle was reaffirmed last Term in Nebraska Press Assn. v. Stuart, supra, which held unconstitutional an order prohibiting the press from publishing certain information tending to show the guilt of a defendant in an impending criminal trial. In Part VI-D of its opinion, the Court focused on the information covered by the order that had been adduced as evidence in a preliminary hearing open to the public and the press; we concluded that, to the extent the order prohibited the publication of such evidence, 'it plainly violated settled principles,' 427 U.S., at 568, 96 S.Ct., at 2807, citing Cox Broadcasting Corp. v. Cohn, supra; Sheppard v. Maxwell, 384 U.S. 333, 362-363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966) ('(T)here is nothing that proscribes the press from reporting events that transpire in the courtroom'); and Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947) ('those who see and hear what transpired (in the courtroom) can report it with impunity'). The Court noted that under state law the trial court was permitted in certain circumstances to close pretrial proceedings to the public, but indicated that such an option did not allow the trial judge to suppress publication of information from the hearing if the public was allowed to attend: '(O)nce a public hearing had been held, what transpired there could not be subject to prior restraint.' 427 U.S., at 568, 96 S.Ct., at 2807.
7
The court below found the rationale of these decisions to be inapplicable here because a state statute provided for closed juvenile hearings unless specifically opened to the public by court order and because 'there is no indication that the judge distinctly and expressly ordered the hearing to be public.' We think Cox and Nebraska Press are controlling nonetheless. Whether or not the trial judge expressly made such an order, members of the press were in fact present at the hearing with the full knowledge of the presiding judge, the prosecutor, and the defense counsel. No objection was made to the presence of the press in the courtroom or to the photographing of the juvenile as he left the courthouse. There is no evidence that petitioner acquired the information unlawfully or even without the State's implicit approval. The name and picture of the juvenile here were 'publicly revealed in connection with the prosecution of the crime,' 420 U.S., at 471, 95 S.Ct., at 1034, much as the name of the rape victim in Cox Broadcasting was placed in the public domain.2 Under these circumstances, the District Court's order abridges the freedom of the press in violation of the First and Fourteenth Amendments.
8
The petition for certiorari is granted, and the judgment is
9
Reversed.
1
In addition to enjoining publication of the name and picture of the juvenile, the order also enjoined law enforcement officials, juvenile authorities, and prosecution and defense counsel 'from disclosing any information or making any comments concerning' the delinquency proceeding pending against the juvenile. Petitioner does not now challenge the restraints on counsel (which were rescinded in a modification of the order on August 5) or on public officials.
2
In Cox Broadcasting the Court quoted the following description by the reporter of the manner in which the name of the rape victim was revealed to him:
"(D)uring a recess of the said trial, I approached the clerk of the court, who was sitting directly in front of the bench, and requested to see a copy of the indictments. In open court, I was handed the indictments, both the murder and the rape indictments, and was allowed to examine fully this document. . . . Moreover, no attempt was made by the clerk or anyone else to withhold the name and identity of the victim from me or from anyone else and the said indictments apparently were available for public inspection upon request." 420 U.S., at 473 n.3, 95 S.Ct., at 1035.
| 23
|
430 U.S. 259
97 S.Ct. 1047
51 L.Ed.2d 313
TOWN OF LOCKPORT, NEW YORK, et al., Appellants,v.CITIZENS FOR COMMUNITY ACTION AT the LOCAL LEVEL, INC., et al.
No. 75-1157.
Argued Nov. 30, and Dec. 1, 1976.
Decided March 7, 1977.
Syllabus
County government in New York has traditionally taken the form of a single-branch legislature, exercising general governmental powers, and such powers are also exercised by the count's constituent cities, villages, and towns. The allocation of powers among these subdivisions can be changed, and a new form of county government adopted, pursuant to referendum procedures provided by the New York Constitution and an implementing statute, under which a proposed county charter submitted to the voters for approval is adopted only if a majority of the voting city dwellers and a majority of the voting noncity dwellers both approve. After a proposed charter for Niagara County submitted to the voters pursuant to these procedures was defeated (despite the fact that a majority of those voting in the entire county favored it) when the city voters approved it but the noncity voters disapproved it, appellees, a group of Niagara County voters, brought suit in Federal District Court challenging the constitutionality of the procedures, and a three-judge court held that the concurrent-majority requirements violated the Equal Protection Clause of the Fourteenth Amendment. Held: The challenged provisions, which are entitled to a presumption of constitutionality, do not violate the Equal Protection Clause. The separate voter approval requirements are based on the perception that the real and long-term impact of a restructuring of local government is felt quite differently by the different county constituent units that in a sense compete to provide similar governmental services. Voters in these constituent units are directly and differentially affected by the restructuring of county government, which may make the provider of public services more remote and less subject to the voters' individual influence, and these differing interests of city and noncity voters in the adoption of a new county charter are sufficient under the Equal Protection Clause to justify the classifications made under the law. Pp. 268-273.
Reversed. See D.C., 386 F.Supp. 1.
Victor T. Fuzak, Buffalo, N.Y., for appellants.
John J. Phelan, New Rochelle, for appellees Citizens for Community Action, etc., et al.
Miles A. Lance, North Tonawanda, for appellees Graf and Comerford.
Mr. Justice STEWART delivered the opinion of the Court.
1
New York law provides that a new county charter will go into effect only if it is approved in a referendum election by separate majorities of the voters who live in the cities within the county, and of those who live outside the cities. A three-judge Federal District Court held that these requirements violate the Equal Protection Clause of the Fourteenth Amendment. We noted probable jurisdiction of this direct appeal from the District Court's judgment under 28 U.S.C. § 1253. 426 U.S. 918, 96 S.Ct. 2622, 49 L.Ed.2d 371.
2
* County government in New York has traditionally taken the form of a single-branch legislature, exercising general governmental powers. General governmental powers are also exercised by the county's constituent cities, villages, and towns. The allocation of powers among these subdivisions can be changed, and a new form of county government adopted, pursuant to referendum procedures specified in Art. IX of the New York Constitution1 and implemented by § 33 of the Municipal Home Rule Law.2 Under those procedures a county board of supervisors may submit a proposed charter to the voters for approval. If a majority of the voting city dwellers and a majority of the voting noncity dwellers both approve, the charter is adopted.3
3
In November 1972, a proposed charter for the county of Niagara was put to referendum. The charter created the new offices of County Executive and County Comptroller, and continued the county's existing power to establish tax rates, equalize assessments, issue bonds, maintain roads, and administer health and public welfare services. No explicit provision for redistribution of governmental powers from the cities or towns to the county government was made. The city voters approved the charter by a vote of 18,220 to 14,914. The noncity voters disapproved the charter by a vote of 11,594 to 10,665.4 A majority of those voting in the entire county thus favored the charter.5 The appellees, a group of Niagara County voters, filed suit pursuant to 42 U.S.C. § 1983 in the United States District Court for the Western District of New York, seeking a declaration that the New York constitutional and statutory provisions governing adoption of the charter form of county government are unconstitutional, and an order directing the appropriate New York officials to file the Niagara County charter as a duly enacted local law. A three-judge court was convened. Before its decision was announced, however, another new charter was put to referendum in Niagara County in November 1974. Again a majority of the city dwellers who voted approved the charter, a majority of the noncity voters disapproved it, and an aggregate majority of all those in the county who voted approved it.6 The District Court subsequently found the concurrent-majority requirements of the New York Constitution and the New York Municipal Home Rule Law violative of the Equal Protection Clause of the Fourteenth Amendment, and ordered implementation of the 1972 Charter. 386 F.Supp. 1.7 On appeal this Court vacated that judgment and remanded the cause 'for reconsideration in light of the provisions of (the) new charter adopted by Niagara County in 1974.' 423 U.S. 808, 96 S.Ct. 11, 46 L.Ed.2d 24. In subsequent proceedings on remand, the District Court found that there was 'no substantial difference between the two Charters' and that the 1974 County Charter had superseded the 1972 Charter.8 Pursuant to its previous constitutional adjudication, the court decreed that the 1974 Charter 'is in full force and effect as the instrument defining the form of local government for Niagara County.'9
II
4
The impact of the Equal Protection Clause on the exercise of the electoral franchise under state law is hardly a novel concern of the federal judiciary. It was made clear more than 15 years ago in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, that the subject is a justiciable one, and ever since the seminal case of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, it has been established that the Equal Protection Clause cannot tolerate the disparity in individual voting strength that results when elected officials represent districts of unequal population, since 'the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State.' Id., at 560-561, 84 S.Ct., at 1381.10
5
In the case before us the District Court, though recognizing that 'the precise issue here presented appears to be one of first impression,' concluded that the rule of Reynolds v. Sims, controlled its resolution. 'Reasoning by analogy,' the court held, in short, that the dual-majority requirement of New York law 'is unconstitutional because it violates the one man, one vote principle.' 386 F.Supp., at 7. In assessing the correctness of the District Court's judgment it is thus appropriate to begin by recalling the basic rationale of the decisions of this Court in which that principle was first developed and applied.
6
The rationale is, at bottom, so simple as to be almost self-evident. Beginning with Reynolds v. Sims, supra, cases in which the principle emerged involved challenges to state legislative apportionment systems that gave 'the same number of representatives to unequal numbers of constituents'. 377 U.S., at 563, 84 S.Ct., at 1382. The Court concluded that in voting for their legislators, all citizens have an equal interest in representative democracy, and that the concept of equal protection therefore requires that their votes be given equal weight.11 See, e. g. Lucas v. Colorado Gen. Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632; Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401; Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376; Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501; Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771; Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363; Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298.
7
The equal protection principles applicable in gauging the fairness of an election involving the choice of legislative representatives are of limited relevance, however, in analyzing the propriety of recognizing distinctive voter interests in a 'single-shot' referendum. In a referendum, the expression of voter will is direct, and there is no need to assure that the voters' views will be adequately represented through their representatives in the legislature. The policy impact of a referendum is also different in kind from the impact of choosing representatives instead of sending legislators off to the state capitol to vote on a multitude of issues, the referendum puts one discrete issue to the voters. That issue is capable, at least, of being analyzed to determine whether its adoption or rejection will have a disproportionate impact on an identifiable group of voters. If it is found to have such a disproportionate impact, the question then is whether a State can recognize that impact either by limiting the franchise to those voters specially affected or by giving their votes a special weight. This question has been confronted by the Court in two types of cases: those dealing with elections involving 'special-interest' governmental bodies of limited jurisdiction, and those dealing with bond referenda.
8
The Court has held that the electorate of a special-purpose unit of government, such as a water storage district, may be apportioned to give greater influence to the constituent groups found to be most affected by the governmental unit's functions. Salyer Land Co. v. Tulare Water Dist., 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659. But the classification of voters into 'interested' and 'noninterested' groups must still be reasonably precise, as Kramer v. Union School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583, demonstrates. The Court assumed in that case that the voting constituency in school district elections could be limited to those 'primarily interested in school affairs,' Id., at 632, 89 S.Ct., at 1892, but concluded that the State's classification of voters on the asserted basis of that interest was so imprecise that the exclusion of otherwise qualified voters was impermissible.12
9
In the bond referenda cases, the local government had either limited the electoral franchise to property owners, or weighted property owners' votes more heavily than those of nonproperty owners by using a 'dual box' separate-majority approval system quite similar to the one at issue in the present case. Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647; Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523; Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172.
10
In the Cipriano case, involving revenue bonds, it was apparent that all voters had an identity of interest in passage of the bond issue, and limitation of the electoral franchise to 'property taxpayers' was, plainly, invidiously discriminatory. The other two cases, however, involved general obligation bonds. There, as in Salyer and Kramer, the validity of the classification depended upon whether the group interests were sufficiently different to justify total or partial withholding of the electoral franchise from one of them. In support of the classifications, it was argued that property owners have a more substantial stake in the adoption of obligation bonds than do nonproperty owners, because the taxes of the former directly and substantially fund the bond obligation. The Court rejected that argument for limiting the electoral franchise, however, noting that nonproperty owners also share in the tax burden when the tax on rental property or commercial businesses is passed on in the form of higher prices. Although the interests of the two groups are concededly not identical, the Court held that they are sufficiently similar to prevent a state government from distinguishing between them by artificially narrowing or weighting the electoral franchise in favor of the property taxpayers.13
11
These decisions do not resolve the issues in the present case. Taken together, however, they can be said to focus attention on two inquiries: whether there is a genuine difference in the relevant interests of the groups that the state electoral classification has created; and, if so, whether any resulting enhancement of minority voting strength nonetheless amounts to invidious discrimination in violation of the Equal Protection Clause.
III
12
The argument that the provisions of New York law in question here are unconstitutional rests primarily on the premise that all voters in a New York county have identical interests in the adoption or rejection of a new charter, and that any distinction, therefore, between voters drawn on the basis of residence and working to the detriment of an identifiable class is an invidious discrimination. If the major premise were demonstrably correct if it were clear that all voters in Niagara County have substantially identical interests in the adoption of a new county charter, regardless of where they reside within the county the District Court's judgment would have to be affirmed under our prior cases. Cipriano v. City of Houma, supra. That major premise, however, simply cannot be accepted. To the contrary, it appears that the challenged provisions of New York law rest on the State's identification of the distinctive interests of the residents of the cities and towns within a county rather than their interests as residents of the county as a homogeneous unit. This identification is based in the realities of the distribution of governmental powers in New York, and is consistent with our cases that recognize both the wide discretion the States have in forming and allocating governmental tasks to local subdivisions, and the discrete interests that such local governmental units may have qua units. Reynolds v. Sims, 377 U.S., at 580, 84 S.Ct., at 1391; Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399; Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320.
13
General-purpose local government in New York is entrusted to four different units: counties, cities, towns, and villages. The State is divided into 62 counties; each of the 57 counties outside of New York City is divided into towns, or towns and one or more cities. Villages, once formed, are still part of the towns in which they are located. The New York Legislature has conferred home rule and general governmental powers on all of these subdivisions, and their governmental activities may on occasion substantially overlap.14 The cities often perform functions within their jurisdiction that the county may perform for noncity residents; similarly villages perform some functions for their residents that the town provides for the rest of the town's inhabitants. Historically towns provided their areas with major social services that more recently have been transferred to counties; towns exercise more regulatory power than counties; and both towns and counties can create special taxing and improvement districts to administer services. See 13 New York Temporary State Commission on the Constitutional Convention, Local Government 20 (1967).
14
Acting within a fairly loose state apportionment of political power, the relative energy and organization of these various subdivisions will often determine which one of them in a given area carries out the major tasks of local government. Since the cities have the greatest autonomy within this scheme, changes serving to strengthen the county structure may have the most immediate impact on the functions of the towns as deliverers of government services. Id., at 19.15
15
The provisions of New York law here in question clearly contemplate that a new or amended county charter will frequently operate to transfer 'functions or duties' from the towns or cities to the county, or even to 'abolish one or more offices, departments, agencies or units of government.'16 Although the 1974 Charter does not explicitly transfer governmental functions or duties from the towns to Niagara County, the executive-legislative form of government it provides would significantly enhance the county's organizational and service delivery capacity, for the purpose of 'greater efficiency and responsibility in county government.' Niagara County Charter, 1972. The creation of the offices of County Executive and Commissioner of Finance clearly reflects this purpose. Such anticipated organizational changes, no less than explicit transfers of functions, could effectively shift any pre-existing balance of power between town and county governments toward county predominance.17 In terms of efficient delivery of government services, such a shift might be all to the good, but it may still be viewed as carrying a cost quite different for town voters and their existing town governments from that incurred by city voters and their existing city governments.
16
The ultimate question then is whether, given the differing interests of city and noncity voters in the adoption of a new county charter in New York, those differences are sufficient under the Equal Protection Clause to justify the classifications made by New York law. Phoenix v. Kolodziejski, 399 U.S. 2048 90 S.Ct. 1990, 26 L.Ed.2d 523; Salyer Land Co. v. Tulare Water Dist., 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659; Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172. If that question were posed in the context of annexation proceedings, the fact that the residents of the annexing city and the residents of the area to be annexed formed sufficiently different constituencies with sufficiently different interests could be readily perceived. The fact of impending union alone would not so merge them into one community of interest as constitutionally to require that their votes be aggregated in any referendum to approve annexation. Cf. Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151. Similarly a proposal that several school districts join to form a consolidated unit could surely be subject to voter approval in each constituent school district.
17
Yet in terms of recognizing constituencies with separate and potentially opposing interests, the structural decision to annex or consolidate is similar in impact to the decision to restructure county government in New York. In each case, separate voter approval requirements are based on the perception that the real and long-term impact of a restructuring of local government is felt quite differently by the different county constituent units that in a sense compete to provide similar governmental services. Voters in these constituent units are directly and differentially affected by the restructuring of county government, which may make the provider of public services more remote and less subject to the voters' individual influence.
18
The provisions of New York law here in question no more than recognize the realities of these substantially differing electoral interests.18 Granting to these provisions the presumption of constitutionality to which every duly enacted state and federal law is entitled,19 we are unable to conclude that they violate the Equal Protection Clause of the Fourteenth Amendment.
19
For the reasons stated in this opinion the judgment is reversed.
20
It is so ordered.
21
The CHIEF JUSTICE concurs in the judgment.
1
Article IX, § 1(h)(1), of the New York Constitution (McKinney 1969) provides in pertinent part:
§ 1. Bill of rights for local governments
'Effective local self-government and intergovernmental cooperation are purposes of the people of the state. In furtherance thereof, local governments shall have the following rights, powers, privileges and immunities in addition to those granted by other provisions of this constitution:
'(h)(1) Counties, other than those wholly included within a city, shall be empowered . . . to adopt, amend or repeal alternative forms of county government . . .. Any such form of government or any amendment thereof . . . may transfer one or more functions or duties of the county or of the cities, towns, villages, districts or other units of government wholly contained in such county to each other . . . or may abolish one or more offices, departments, agencies or units of government provided, however, that no such form or amendment . . . shall become effective unless approved on a referendum by a majority of the votes cast thereon in the area of the county outside of cities, and in the cities of the county, if any, considered as one unit. Where an alternative form of county government or any amendment thereof . . . provides for the transfer of any function or duty to or from any village or the abolition of any office, department, agency or unit of government of a village wholly contained in such county, such form or amendment shall not become effective unless it shall also be approved on the referendum by a majority of the votes cast thereon in all the villages so affected considered as one unit.'
2
Section 33(7) of the Municipal Home Rule Law of New York provides:
§ 33. Power to adopt, amend and repeal county charters
'7. A charter law
'(a) providing a county charter, or
'(b) proposing an amendment or repeal of one or more provisions thereof which would have the effect of transferring a function or duty of the county, or of a city, town, village, district or other unit of local government wholly contained in the county, shall conform to and be subject to consideration by the board of supervisors in accordance with the provisions of this chapter generally applicable to the form of and action on proposed local laws by the board of supervisors. If a county charter, or a charter law as described in this subdivision, is adopted by the board of supervisors, it shall not become operative unless and until it is approved at a general election or at a special election, held in the county by receiving a majority of the total votes cast thereon (a) in the area of the county outside of cities and (b) in the area of the cities of the county, if any, considered as one unit, and if it provides for the transfer of any function or duty to or from any village or for the abolition of any office, department, agency or unit of government of a village wholly contained in the county, it shall not take effect unless it shall also receive a majority of all the votes cast thereon in all the villages so affected considered as one unit. Such a county charter or charter law shall provide for its submission to the electors of the county at the next general election or at a special election, occurring not less than sixty days after the adoption thereof by the board of supervisors. Such a county charter or charter law may provide for the separate submission to the electors at such election of one or more variations of the provisions of such county charter. Any such variation may include, but shall not be limited to, proposed transfers of functions of local government to other units of local government or a class or classess thereof.'
3
When the proposed charter provides for the transfer of duties or functions of villages within the county, the voters residing in the villages must also approve it by a separate majority. See nn. 1 and 2, supra. That requirement is not directly involved in the present litigation.
4
Village residents are also residents of the towns in which they are located, are subject to their governments, and are included in the noncity vote.
5
A total of 55,393 votes was cast; in the aggregate 28,885 voters favored the charter and 26,508 opposed it. The population of Niagara County was approximately 236,000.
6
A total of 36,808 votes was cast in the referendum election. The city dwellers who voted favored the charter by a margin of 11,305 to 9,222; the noncity dwellers voted 8,222 to 8,059 against it. In the county as a whole, 19,364 voted for the charter, and 17,444 against it.
7
Niagara County itself had earlier brought an action in the same court to enforce the 1972 Charter as the law of Niagara County. County of Niagara v. New York, Civ.No. 1972-656 (WDNY, Apr. 13, 1973). The District Court had dismissed the complaint on the ground that it presented no substantial federal question, and no appeal had been taken. The appellants interposed a res judicata defense based upon that judgment. The District Court properly rejected that defense upon the ground that the plaintiffs had not been parties to the earlier suit and were not in privity with the county of Niagara, which had brought it. 386 F.Supp., at 5.
8
The District Court also enjoined pending state proceedings brought by the appellants to challenge the certification and enforcement of the 1974 Charter. The appellants now argue that the District Court should have deferred to the jurisdiction of the state court. Even assuming that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, principles are fully applicable in the civil context, however, the original action challenging the dual-majority provisions of New York law had been brought in the federal court well before the appellants filed their state-court suit, and principles of comity and federalism do not require that a federal court abandon jurisdiction it has properly acquired simply because a similar suit is later filed in a state court.
9
The District Court's opinion on remand is unreported. The appellants argue that the relief originally sought in this suit was limited to the 1972 Charter, and that the case is now moot because the 1974 Charter has superseded it. Pursuant to our mandate on remand, however, the District Court gave full consideration to the 1974 Charter, concluded that it was substantially the same as the 1972 Charter, and amended its judgment to recognize the validity of the 1974 Charter. Although the better practice might have been to require amendment of the complaint so as formally to seek the relief ultimately granted, the appellants were not prejudiced by the procedure adopted by the District Court, and we consider the validity of the 1974 Charter as the issue before us.
10
In the application of this settled rule, the Court has, of course, frequently been divided with respect to what deviations from numerical exactitude are constitutionally permissible. See e. g., Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399; Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320; Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298; White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314.
11
The Court has applied the principle of 'one person, one vote' to representative elections at the local as well as state level. See, e. g., Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45; Hadley v. Junior College Dist., 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45.
12
See also Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675, holding that although the requirement that a citizen be a resident of Texas was clearly an acceptable means of defining relevant constituencies, Texas could not exclude all servicemen from voting on the conclusive presumption that their necessarily transient status precluded them from being bona fide residents.
13
We have held, however, that a referendum voting scheme that can be characterized in mathematical terms as giving disproportionate power to a minority does not violate the Equal Protection Clause, there being no discrimination against an identifiable class. Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889, 29 L.Ed.2d 273. Cf. Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616.
14
See generally N.Y.Mun.Home Rule Law (McKinney 1969 and Supp. 1976-1977); 13 New York Temporary State Commission on the Constitutional Convention, Local Government (1967); Moore, Early History of Town Government in New York State, in N.Y.Town Law vii (McKinney 1965).
15
The Court has previously had occasion to recognize the historic functional interdependence of county and town subdivisions in New York and has allowed considerable deviation from the basic rule of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1632, 12 L.Ed.2d 506, on that ground. Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399.
16
See nn. 1 and 2, supra.
17
Appellee Citizens for Community Action at the Local Level argue that appellee Niagara County's failure to controvert the allegation in the original complaint that 'no specific group of voters, residents or other persons were primarily affected or interested as compared to another group' establishes that the city and town voters here had identical interests in the charter's adoption. As a factual matter, this assertion appears contradicted by the later intervention of the town of Lockport to protect its voters' special interests in the issue. In any case, the question of the constitutionality of Art. IX of the New York Constitution and § 33 of the New York Municipal Home Rule Law turns, not on the perceptions of voters in a particular county, but on whether the State might legitimately view their interests as sufficiently different to justify a distinction between city and town voters.
18
There is no indication that the classifications created by New York law work to favor city voter over town voter, or town voter over city voter. In some New York counties, city voters outnumber town voters; in other counties, the reverse is true. We are advised that of charters proposed in 14 counties, one failed to obtain majority approval of the city voters; two (including Niagara County) failed to obtain majority approval of noncity voters; eight failed to obtain a majority vote in either the towns or the cities; and three were approved by both city and town voters.
The constitutional and statutory provisions in this case also do not appear to be the sustained product of either an entrenched minority or a willful majority. Instead they have been subject historically to fairly frequent revision. The constitutional amendment requiring city and town voter approval for changes in county government was first adopted by referendum in 1935. N.Y.Const., Art. III, § 26 (1935). In 1938, the Constitution was amended to provide for approval by the voters in the county as a whole, unless the proposal provided for transfers of functions to or from cities, towns, or villages in the county. N.Y.Const., Art. IX (1938). In 1958, Art. IX was again amended to provide that any change in county government had to be approved by a majority of the noncity voters, voting as a group, and by a majority of the city voters, voting as a group. The existing Art. IX, adopted in 1963, contains the same general provision as the 1958 amendment.
19
See Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129 (1893).
| 12
|
430 U.S. 243
97 S.Ct. 1067
51 L.Ed.2d 300
NOLDE BROTHERS, INC., Petitioner,v.
LOCAL NO. 358, BAKERY & CONFECTIONERY WORKERS UNION, AFL-CIO.
No. 75-1198.
Argued Nov. 9, 1976.
Decided March 7, 1977.
Rehearing Denied April 25, 1977.
See 430 U.S. 988, 97 S.Ct. 1689.
Syllabus
Petitioner corporation entered into a collective-bargaining agreement with respondent Union which contained a provision for severance pay on termination of the employment of certain employees. The agreement, which specified that any grievance arising between the parties was subject to binding arbitration, was to remain in effect until its expiration date and thereafter until execution of a new agreement or the existing agreement was terminated by either party upon seven days' written notice. While contract changes were being negotiated after the contract's expiration date, respondent on August 20, 1973, gave notice of cancellation, and the contract terminated August 27. Negotiations nevertheless continued but ended on August 31, when petitioner, threatened with a strike, informed respondent that it was closing its plant effective that day. Plant operations ceased shortly thereafter. Petitioner paid accrued wages, but rejected respondent's demand for severance pay under the collective-bargaining agreement and declined to arbitrate the claim therefor on the ground that its obligation to do so terminated with the collective-bargaining agreement. Respondent then brought this action in District Court to compel petitioner, inter alia, to arbitrate the severance-pay issue. The District Court granted petitioner's motion for summary judgment, holding that the employees' right to severance pay expired with respondent's voluntary termination of the agreement; that consequently there was no longer a severance-pay issue to arbitrate; and that, in any event, the duty to arbitrate ended with the contract. The Court of Appeals reversed, concluding that the parties' arbitration duties under the contract survived its termination with respect to claims arising by reason of the agreement. Held: Respondent's claim for severance pay under the expired contract is subject to resolution under the contract's arbitration terms. Pp. 248-255.
(a) The obligations of parties under the arbitration clause of a collective-bargaining agreement may survive contract termination when the dispute is over an obligation arguably created by the expired agreement. John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898. Pp. 250-252.
(b) The parties agreed to resolve all disputes by resort to the mandatory grievance-arbitration machinery established by the agreement. There is nothing in the arbitration clause that expressly excluded from its operation a dispute arising under the contract but based on events occurring after its termination. Absent some contrary indication, there are strong reasons to conclude that the parties did not intend their arbitration obligations to end automatically with the contract. Pp. 252-253.
(c) The parties clearly expressed their preference for an arbitral, rather than a judicial, interpretation of their obligations and drafted their broad arbitration clause against a backdrop of the well-established federal labor policy favoring arbitration as a means of resolving disputes. There is a strong presumption favoring arbitrability. Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1352-1353, 4 L.Ed.2d 1409. Pp. 253-255.
(d) Where the dispute is over a provision of the expired collective-bargaining agreement, the presumptions favoring arbitrability must be negated expressly or by clear implication. P. 255.
4 Cir., 530 F.2d 548, affirmed.
Allan L. Bioff, for petitioner.
Ronald Rosenberg, for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
This case raises the question of whether a party to a collective-bargaining contract may be required to arbitrate a contractual dispute over severance pay pursuant to the arbitration clause of that agreement even though the dispute, although governed by the contract, arises after its termination. Only the issue of arbitrability is before us.
2
(1)
3
In 1970, petitioner Nolde Brothers, Inc., entered into a collective-bargaining agreement with respondent Local No. 358, of the AFL-CIO, covering petitioner's Norfolk, Va., bakery employees. Under the contract, 'any grievance' arising between the parties was subject to binding arbitration.1 In addition, the contract contained a provision which provided for severance pay on termination of employment for all employees having three of more years of active service.2 Vacation rights were also granted employees by the agreement;3 like severance pay, these rights were geared to an employee's length of service and the amount of his earnings. By its terms, the contract was to remain in effect until July 21, 1973, and thereafter, until such time as either a new agreement was executed between the parties, or the existing agreement was terminated upon seven days' written notice by either party.
4
In May 1973, the parties resumed bargaining after the Union advised Nolde, pursuant to § 8(d) of the National Labor Relations Act, 29 U.S.C. § 158(d), of its desire to negotiate certain changes in the existing agreement. These negotiations continued without resolution up to, and beyond, the July 21 contract expiration date. On August 20, the Union served the requisite seven days written notice of its decision to cancel the existing contract. The Union's termination of the contract became effective August 27, 1973.
5
Despite the contract's cancellation, negotiations continued. They ended, however, on August 31, when Nolde, faced by a threatened strike after the Union had rejected its latest proposal, informed the Union of its decision to close permanently its Norfolk bakery, effective that day. Operations at the plant ceased shortly after midnight on August 31. Nolde then paid employees their accrued wages and accrued vacation pay under the canceled contract; in addition, wages were paid for work performed during the interim between the contract's termination on August 27 and the bakery's closing four days later. However, the company rejected the Union's demand for the severance pay called for in the collective-bargaining agreement. It also declined to arbitrate the severance-pay claim on the ground that its contractual obligation to arbitrate disputes terminated with the collective-bargaining agreement.
6
The Union then instituted this action in the District Court under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, seeking to compel Nolde to arbitrate the severance-pay issue, or in the alternative, judgment for the severance pay due. The District Court granted Nolde's motion for summary judgment on both issues. It held that the employees' right to severance pay expired with the Union's voluntary termination of the collective-bargaining contract and that, as a result, there was no longer any severance-pay issue to arbitrate. It went on to note that even if the dispute had been otherwise arbitrable, the duty to arbitrate terminated with the contract that had created it. 382 F.Supp. 1354 (ED Va.1974).
7
On appeal, the United States Court of Appeals for the Fourth Circuit reversed. 530 F.2d 548 (1975). It took the position that the District Court had approached the case from the wrong direction by determining that Nolde's severance-pay obligations had expired with the collective-bargaining agreement before determining whether Nolde's duty to arbitrate the claim survived the contract's termination. Turning to that latter question first, the Court of Appeals concluded that the parties' arbitration duties under the contract survived its termination with respect to claims arising by reason of the collective-bargaining agreement. Having thus determined that the severance-pay issue was one for the arbitrator, the Court of Appeals expressed no views on the merits of the dispute. We granted certiorari to review its determination that the severance-pay claim was arbitrable. 425 U.S. 970, 96 S.Ct. 2165, 48 L.Ed.2d 793 (1976).
8
(2)
9
In arguing that Nolde's displaced employees were entitled to severance pay upon the closing of the Norfolk bakery, the Union maintained that the severance wages provided for in the collective-bargaining agreement were in the nature of 'accrued' or 'vested' rights, earned by employees during the term of the contract on essentially the same basis as vacation pay, but payable only upon termination of employment. In support of this claim, the Union noted that the severance-pay clause is found in the contract under an article entitled 'Wages.' The inclusion within that provision, it urged, was evidence that the parties considered severance pay as part of the employees' compensation for services performed during the life of the agreement.4 In addition, the Union pointed out that the severance-pay clause itself contained nothing to suggest that the employees' right to severance pay expired if the events triggering payment failed to occur during the life of the contract. Nolde, on the other hand, argued that since severance pay was a creation of the collective-bargaining agreement, its substantive obligation to provide such benefits terminated with the Union's unilateral cancellation of the contract.
10
As the parties' arguments demonstrate, both the Union's claim for severance pay and Nolde's refusal to pay the same are based on their differing perceptions of a provision of the expired collective-bargaining agreement. The parties may have intended, as Nolde maintained, that any substantive claim to severance pay must surface, if at all, during the contract's term. However, there is also 'no reason why parties could not if they so chose agree to the accrual of rights during the term of an agreement and their realization after the agreement had expired.' John Wiley & Sons v. Livingston, 376 U.S. 543, 555, 84 S.Ct. 909, 917, 11 L.Ed.2d 898 (1964).5 Of course, in determining the arbitrability of the dispute, the merits of the underlying claim for severance pay are not before us. However, it is clear that, whatever the outcome, the resolution of that claim hinges on the interpretation ultimately given the contract clause providing for severance pay. The dispute therefore, although arising after the expiration of the collective-bargaining contract, clearly arises under that contract.
11
There can be no doubt that a dispute over the meaning of the severance-pay clause during the life of the agreement would have been subject to the mandatory grievance-arbitration procedures of the contract. Indeed, since the parties contracted to submit 'all grievances' to arbitration, our determination that the Union was 'making a claim which on its face is governed by the contract' would end the matter had the contract not been terminated prior to the closing of the plant. Steelworkers v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960). Here, however, Nolde maintains that a different rule must prevail because the event giving rise to the contractual dispute, i.e., the employees' severance upon the bakery's closing, did not occur until after the expiration of the collective-bargaining agreement.
12
(3)
13
Nolde contends that the duty to arbitrate, being strictly a creature of contract, must necessarily expire with the collective-bargaining contract that brought it into existence. Hence, it maintains that a court may not compel a party to submit any post-contract grievance to arbitration for the simple reason that no contractual duty to arbitrate survives the agreement's termination. Any other conclusion, Nolde argues, runs contrary to federal labor policy which prohibits the imposition of compulsory arbitration upon parties except when they are bound by an arbitration agreement. In so arguing, Nolde relies on numerous decisions of this Court which it claims establish that 'arbitration is a matter of contract and (that) a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.' Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960); e. g., Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 374, 94 S.Ct. 629, 635, 38 L.Ed.2d 583 (1974); John Wiley & Sons v. Livingston, supra, at 547, 84 S.Ct., at 912; Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8 L.Ed.2d 462 (1962).
14
Our prior decisions have indeed held that the arbitration duty is a creature of the collective-bargaining agreement and that a party cannot be compelled to arbitrate any matter in the absence of a contractual obligation to do so. Adherence to these principles, however, does not require us to hold that termination of a collective-bargaining agreement automatically extinguishes a party's duty to arbitrate grievances arising under the contract. Carried to its logical conclusion that argument would preclude the entry of a post-contract arbitration order even when the dispute arose during the life of the contract but arbitration proceedings had not begun before termination. The same would be true if arbitration processes began but were not completed, during the contract's term. Yet it could not seriously be contended in either instance that the expiration of the contract would terminate the parties' contractual obligation to resolve such a dispute in an arbitral, rather than a judicial forum. See John Wiley & Sons, supra; Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Machine Workers v. Oxco Brush Div., 517 F.2d 239, 242-243 (CA6 1975); Procter & Gamble Ind. Union v. Procter & Gamble Mfg. Co., 132 F.2d 181, 186 (CA2 1962), cert. denied, 374 U.S. 830, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963). Nolde concedes as much by limiting its claim of nonarbitrability to those disputes which clearly arise after the contract's expiration. Brief for Petitioner 22.
15
Our holding in John Wiley & Sons is instructive on this matter. There we held that a dispute over employees' rights to severance pay6 under an expired collective-bargaining agreement was arbitrable even though there was no longer any contract between the parties. In their expired agreement, the parties had agreed to submit to arbitration:
16
"any differences, grievance or dispute between the Employer and the Union arising out of or relating to this agreement, or its interpretation or application, or enforcement." 376 U.S., at 553, 84 S.Ct., at 916.
17
The Court had little difficulty interpreting that language to require the arbitration of the Union's post-termination severance-pay claim since that claim was
18
'based solely on the Union's construction of the . . . agreement in such a way that . . . (the Employer) would have been required to discharge certain obligations notwithstanding the expiration of the agreement.' Id., at 555, 84 S.Ct., at 917.
19
We thus determined that the parties' obligations under their arbitration clause survived contract termination when the dispute was over an obligation arguably created by the expired agreement. It is true that the Union there first sought to arbitrate the question of post-contract severance pay while the agreement under which it claimed such benefits was still in effect. But that factor was not dispositive in our determination of arbitrability. Indeed, that very distinction was implicitly rejected shortly thereafter in Piano Workers v. W. W. Kimball Co., 379 U.S. 357, 85 S.Ct. 441, 13 L.Ed.2d 541 (1964), rev'g 333 F.2d 761 (CA7), on the basis of John Wiley & Sons, supra, and Steelworkers v. American Mfg. Co., supra.7 We decline to depart from that course in the instant case, for, on the record before us, the fact that the Union asserted its claim to severance pay shortly after, rather than before, contract termination does not control the arbitrability of that claim.
20
The parties agreed to resolve all disputes by resort to the mandatory grievance-arbitration machinery established by their collective-bargaining agreement. The severance-pay dispute, as we have noted, would have been subject to resolution under those procedures had it arisen during the contract's term. However, even though the parties could have so provided, there is nothing in the arbitration clause that expressly excludes from its operation a dispute which arises under the contract, but which is based on events that occur after its termination. The contract's silence, of course, does not establish the parties' intent to resolve post-termination grievances by arbitration. But in the absence of some contrary indication, there are strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract. Any other holding would permit the employer to cut off all arbitration of severance-pay claims by terminating an existing contract simultaneously with closing business operations.
21
By their contract the parties clearly expressed their preference for an arbitral, rather than a judicial-interpretation of their obligations under the collective-bargaining agreement. Their reasons for doing so, as well as the special role of arbitration in the employer-employee relationship, have long been recognized by this Court:
22
'The labor arbitrator is usually chosen because of the parties' confidence in his knowledge of the common law of the shop and their trust in his personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment. . . . The ablest judge cannot be expected to bring the same experience and competence to bear upon the determination of a grievance, because he cannot be similarly informed.' Warrior & Gulf Nav. Co., 363 U.S., at 582, 80 S.Ct., at 1353.
23
Indeed, it is because of his special experience, expertise, and selection by the parties that courts generally defer to an arbitrator's interpretation of the collective-bargaining agreement:
24
'(T)he question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.' Enterprise Wheel & Car Corp., 363 U.S., at 599, 80 S.Ct., at 1362.
25
While the termination of the collective-bargaining agreement works an obvious change in the relationship between employer and union, it would have little impact on many of the considerations behind their decision to resolve their contractual differences through arbitration. The contracting parties' confidence in the arbitration process and an arbitrator's presumed special competence in matters concerning bargaining agreements does not terminate with the contract. Nor would their interest in obtaining a prompt and inexpensive resolution of their disputes by an expert tribunal. Hence, there is little reason to construe this contract to mean that the parties intended their contractual duty to submit grievances and claims arising under the contract to terminate immediately on the termination of the contract; the alternative remedy of a lawsuit is the very remedy the arbitration clause was designed to avoid.
26
It is also noteworthy that the parties drafted their broad arbitration clause against a backdrop of well-established federal labor policy favoring arbitration as the means of resolving disputes over the meaning and effect of collective-bargaining agreements. Congress has expressly stated:
27
'Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.' 29 U.S.C. § 173(d).
28
In order to effectuate this policy, this Court has established a strong presumption favoring arbitrability:
29
'(T)o be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, . . . (a)n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.' Warrior & Gulf Nav. Co., supra, 363 U.S., at 582-583, 80 S.Ct., at 1353.
30
The parties must be deemed to have been conscious of this policy when they agree to resolve their contractual differences through arbitration. Consequently, the parties' failure to exclude from arbitrability contract disputes arising after termination, far from manifesting an intent to have arbitration obligations cease with the agreement, affords a basis for concluding that they intended to arbitrate all grievances arising out of the contractual relationship. In short, where the dispute is over a provision of the expired agreement, the presumptions favoring arbitrability must be negated expressly or by clear implication.
31
We therefore agree with the conclusion of the Court of Appeals that, on this record, the Union's claim for severance pay under the expired collective-bargaining agreement is subject to resolution under the arbitration provisions of that contract.8
32
Affirmed.
33
Mr. Justice STEWART, with whom Mr. Justice REHNQUIST joins, dissenting.
34
When a dispute arises between two parties, that dispute is to be settled by the process of arbitration only if there is an agreement between the parties that the dispute will be settled by that means. Yet the Court today says that a union-employer dispute must be settled by arbitration even though the dispute did not even arise until after the contract containing an agreement to arbitrate had been terminated by action of the Union, and the employer had closed its business. I think this conclusion is neither required by existing precedent nor based upon any realistic appraisal of the contracting parties' intent.
35
Our cases, to be sure, have established the importance of arbitration in resolving disputes arising under collective-bargaining agreements and in thereby maintaining peaceful labor relations. A collective-bargaining agreement erects a system of industrial self-government; grievance and arbitration provisions in such an agreement make that collective-bargaining process continuous: 'Arbitration is the means of solving the unforeseeable by molding a system of private law for all the problems which may arise and to provide for their solution in a way which will generally accord with the variant needs and desires of the parties.' Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409.
36
But the duty to arbitrate can arise only upon the parties' agreement to resolve their contractual differences in the arbitral forum. And the presumptive continuation of that duty even after the formal expiration of such an agreement can be justified only in terms of a web of assumptions about the continuing nature of the labor-management relationship and the importance of having available a method harmoniously to resolve differences arising in that relationship. See generally id., at 578, 80 S.Ct. at 1350.
37
Those assumptions are wholly inapplicable to this case. The closing of the bakery by the employer-petitioner necessarily meant that there was no continuing relationship to protect or preserve. Cf. John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898; Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46. And the Union's termination of the contract, thereby releasing it from its obligation not to strike, foreclosed any reason for implying a continuing duty on the part of the employer to arbitrate as a quid pro quo for the Union's offsetting, enforceable duty to negotiate rather than strike. See Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199.
38
Although for these reasons no continuing duty to arbitrate can be presumed in this case in the interest of maintaining industrial peace, it might nevertheless rationally be argued that the arbitration agreement was a term or condition of employment that the employer could not unilaterally change without first bargaining to impasse. See 29 U.S.C. § 158(a)(5). The trouble with that argument is that the National Labor Relations Board has rejected the notion that arbitration is a term or condition of employment that by operation of statute continues even after the contract embodying it has terminated. The Board, instead, has viewed arbitration as an obligation that arises solely out of contract, and is favored but not statutorily required as dispute-resolving mechanism. See Hilton-Davis Chemical Co., 185 N.L.R.B. 241 (1970). See also Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583.
39
It is clear, therefore, that neither federal labor law nor the interest of maintaining industrial peace can serve to explain the Court's conclusion that the presumption of arbitrability extends to the facts of this case.
40
I realize that our decisions have broadly held that doubts as to arbitrability under an arbitration clause are to be resolved in favor of arbitrability. See Warrior & Gulf Nav. Co., supra. But those cases involved arbitration clauses that were undoubtedly in force at the time the dispute first arose, and arbitration was invoked to resolve issues arising during the continuing course of the employer-employee relationship. (See, e. g., Piano Workers v. W. W. Kimball Co., 379 U.S. 357, 85 S.Ct. 441, 13 L.Ed.2d 541, where a dispute over the rights of employees to preferential hiring at a new plant commenced before the contract at the old plant had expired.) The question here, by contrast, is whether the presumption of arbitrability survived even when the contract providing for arbitration had terminated and the rights in dispute, though claimed to arise under the contract, ripened only after the contract had expired and the employment relationship had terminated.
41
For the reasons I have expressed, I think there was no agreement to arbitrate this dispute. The Union had, of course, a clear cause of action under § 301 of the Labor Management Relations Act to seek judicial redress against the employer for its failure to meet its severance-pay obligations to the employees. The Union did, in fact, bring just such a lawsuit in this case. If the Court of Appeals had addressed the merits of the litigation, as I believe it should have done, this controversy would have been settled long ago.
42
I respectfully dissent from the opinion and judgment of the Court.
1
ARTICLE XII
GRIEVANCES AND ARBITRATION
'Section 1. All grievances shall be first taken up between the Plant Management and the Shop Steward. If these parties shall be unable to settle the grievance, then the Business Agent of the Union shall be called in, in an attempt to arrive at a settlement of the grievance. If these parties are unable to settle the grievance, the dispute will be settled as called for in Sections 2 and 3 of this Article.
'Section 2. In the event that any grievance cannot be satisfactorily adjusted by the procedure outlined above, either of the parties hereto may demand arbitration and shall give written notice to the other party of its desire to arbitrate. No individual employee shall have the right to invoke arbitration without the written consent of the Union. The Arbitration Board shall consist of three (3) persons, one selected by the Company and one selected by the Union. The two persons selected shall agree upon a third person who shall act as Chairman of the Arbitration Board.
'Section 3. The decision or award of the Arbitration Board, or a majority thereof, shall be final and binding on both parties. If the third party to arbitration is not selected in ten (10) days from receipt of notice, the Director of the U. S. Conciliation Service shall be requested to make the appointment. The expense of the neutral arbitrator shall be borne equally by the parties.
'Section 4. Pending negotiations or during arbitration there shall be no strikes, lock-outs, boycotts, or any stoppages of work.'
2
ARTICE IX
WAGES
'Section 5. Each full-time employee who is permanently displaced from his employment with the Company by reason of the introduction of labor saving equipment, the closing of a department, the closing of an entire plant, or by lay off, shall be compensated for such displacement providing he has been actively employed by the Company for a period of at least three (3) years. An eligible employee's compensation for his displacement shall be on the basis of thirty (30) hours of severance pay, at his straight time hourly rate, for each full year or major portion of a year of active employment commencing with the fourth (4th) year following his most recent date of hire. Payment under this formula shall be limited to a maximum of nine hundred (900) hours of severance pay.
'Section 6. No severance pay will be paid to an eligible employee if he:
'(a) accepts employment in another plant of the Company; or
'(b) is voluntarily or involuntarily separated from his employment prior to the date he would otherwise be displaced for one of the reasons stated in Section 5 above.'
3
ARTICLE IV
VACATIONS
'Section 1. Each full time employee is entitled to one week's vacation after one year's service, two (2) weeks' vacation after two (2) years' service, three (3) weeks' vacation after nine (9) years' service, and four (4) weeks' vacation after eighteen (18) years' service. . .
'Effective January 1, 1972, the service requirement for the fourth (4th) week of vacation shall be reduced to seventeen (17) years.
'Effective January 1, 1972, each employee with twenty-five (25) or more years of service shall be entitled to a vacation benefit of five (5) weeks.
'Section 2. The anniversary date of employment shall be adjusted by periods of lay-offs or leaves of absence for the purpose of computation of vacation benefits only.
'Section 3. Vacation pay shall be based on straight time at the employee's regular hourly rate for the average number of hours worked by the employee in the thirteen (13) weeks preceding the vacation period, not including holiday weeks or weeks in which time is lost on account of sickness, with a minimum of forty (40) hours' pay and a maximum of forty-eight (48) hours' pay for each week of the vacation allowance.'
4
The fact that the amount of severance pay to which an employee is entitled under the collective-bargaining agreement varies according to the length of his employment and the amount of his salary also supports the Union's position that severance pay was nothing more than deferred compensation.
5
The parties apparently viewed the vacation rights provided by Art. IV of the contract as vested in nature since after the bakery's closing, Nolde, upon the Union's request, paid its former employees all vacation pay which had accrued under the collective-bargaining agreement.
6
The parties also disagreed over such matters as seniority rights, welfare security benefits, discharges and layoffs, and vacations. 376 U.S., at 554 n. 7, 84 S.Ct., at 916.
7
In W. W. Kimball Co., the Seventh Circuit found that a dispute over seniority rights under an expired collective-bargaining agreement was nonarbitrable. There the dispute did not arise, nor were arbitration proceedings or an action to compel the same instituted, during the life of the agreement. 333 F.2d, at 762-763.
8
Certiorari was neither sought, nor granted, on the question of the arbitrator's authority to consider arbitrability following referral, and we express no view on that matter. Similarly, we need not speculate as to the arbitrability of post-termination contractual claims which, unlike the one presently before us, are not asserted within a reasonable time after the contract's expiration.
| 67
|
430 U.S. 322
97 S.Ct. 1189
51 L.Ed.2d 368
Alicia MORALESv.James A. TURMAN et al.
No. 76-5881.
March 21, 1977.
Rehearing Denied April 25, 1977.
See 430 U.S. 988, 97 S.Ct. 1690.
PER CURIAM.
1
The motion of American Orthopsychiatric Association et al. for leave to file a brief as amici curiae is granted.
2
This case from the United States Court of Appeals for the Fifth Circuit involves the proper scope of three-judge-court jurisdiction under 28 U.S.C. § 2281.* Petitioners brought suit challenging allegedly unconstitutional punitive and inhumane conditions in Texas institutions housing juvenile delinquents, and the failure to provide juveniles with the rehabilitation or treatment that justified their confinement. A single District Judge determined that the juveniles' constitutional rights had been violated, and ordered the parties to submit a curative plan. The Court of Appeals vacated the District Court's decision on the ground that a three-judge court should have been convened in accordance with § 2281. 535 F.2d 864 (1976).
3
The appellate court reasoned that the challenged, unwritten practices of the juvenile institutions administered by the Texas Youth Council were revealed during trial to be statewide in impact and that therefore they were equivalent to a statute with statewide applicability within the meaning of § 2281. Under the Court of Appeals' analysis, the necessity of convening a three-judge court was thus not properly apparent until considerable factual development of the breadth and content of the Texas Youth Council's administrative practices had taken place.
4
In construing § 2281, this Court has concluded that the three-judge court procedure is brought into play in any 'suit which seeks to interpose the Constitution against enforcement of a state policy, whether such policy is defined in a state constitution or in an ordinary statute or through the delegated legislation of an 'administrative board or commission." Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941). We have never, however, considered the generalized, unwritten practices of administration to be equivalent to the 'delegated legislation' of an administrative board. In fact that approach was specifically rejected in Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), involving a challenge brought in a single-judge court to the Rhode Island prison system's unwritten rule forbidding counsel at disciplinary hearings. In rejecting the argument that a three-judge court was necessary to resolve that challenge, we noted that the complaint did not meet the threshold requirements of § 2281 jurisdiction; it 'did not mention or challenge any rule or regulation of the Authority; nor did it seek an injunction against the enforcement of any identified rule.' 425 U.S., at 313 n. 2, 96 S.Ct., at 1555. That description applies equally to the complaint in this case.
5
The ruling in Baxter merely reflected the consistent recognition that the three-judge court procedure is not 'a measure of broad social policy to be construed with great liberality, but . . . an enactment technical in the strict sense of the term and to be applied as such.' Phillips v. United States, supra, at 251, 61 S.Ct. at 483; see also Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 98, 95 S.Ct. 289, 294, 42 L.Ed.2d 249 (1974). The Court of Appeals' ruling improperly deviated from that understanding, and in addition it effectively transformed the jurisdictional inquiry from a threshold question to one depending upon the shifting proof during litigation, injecting intolerable uncertainty and potential delay into important litigation.
6
Accordingly we hold that the single District Judge properly exercised jurisdiction to decide this case, and that his judgment is reviewable on the merits in the Court of Appeals. See 28 U.S.C. § 1291. The petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
7
It is so ordered.
*
Public Law 94-381 Aug. 12, 1976, 90 Stat. 1119, prospectively repealed 28 U.S.C. § 2281. For cases pending at the time of repeal, § 2281 still governs jurisdiction, and 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.'
| 89
|
430 U.S. 313
97 S.Ct. 1192
51 L.Ed.2d 360
Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfarev.Will WEBSTER.
No. 76-457.
March 21, 1977.
PER CURIAM.
1
Under § 215 of the Social Security Act, as added, 64 Stat. 506, and amended, 42 U.S.C. § 415 (1970 ed. and Supp. V), old-age insurance benefits are computed on the basis of the wage earner's 'average monthly wage' earned during his 'benefit computation years' which are the 'elapsed years' (reduced by five) during which the wage earner's covered wages were highest. Until a 1972 amendment, 'elapsed years' depended upon the sex of the wage earner. Section 215(b)(3) prescribed that the number of 'elapsed years' for a male wage earner would be three higher than for an otherwise similarly situated female wage earner; for a male, the number of 'elapsed years' equaled the number of years that elapsed after 1950 and before the year in which he attained age 65; for a female the number of 'elapsed years' equaled the number of years that elapsed after 1950 and before the year in which she attained age 62.1 Thus, a male born in 1900 would have 14 'elapsed years' on retirement at age 65 but a female born in the same year would have only 11.2 Accordingly, a female wage earner could exclude from the computation of her 'average monthly wage' three more lower earning years than a similarly situated male wage earner could exclude. This would result in a slightly higher 'average monthly wage' and a correspondingly higher level of monthly old-age benefits for the retired female wage earner.3 A single-judge District Court for the Eastern District of New York, on review under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), of a denial, after hearing, of appellee's request that the more favorable formula be used to compute his benefits, held that, on two grounds, the statutory scheme violated the equal protection component of the Due Process Clause of the Fifth Amendment: (1) that to give women who reached age 62 before 1975 greater benefits than men of the same age and earnings record was irrational,4 and (2) that in any event the 1972 amendment was to be construed to apply retroactively, because construing the amendment to give men who reach age 62 in 1975 or later the benefit of the 1972 amendments but to deny older men the same benefit would render the amendment irrational, and therefore unconstitutional. 413 F.Supp. 127 (1976). We reverse.
2
To withstand scrutiny under the equal protection component of the Fifth Amendment's Due Process Clause, 'classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.' Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976). Reduction of the disparity in economic condition between men and women caused by the long history of discrimination against women has been recognized as such an important governmental objective. Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). But 'the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.' Weinberger v. Wiesenfeld, 420 U.S. 636, 648, 95 S.Ct. 1225, 1233, 43 L.Ed.2d 514 (1975). Accordingly, we have rejected attempts to justify gender classifications as compensation for past discrimination against women when the classifications in fact penalized women wage earners, Califano v. Goldfarb, 430 U.S. 199, 209 n. 8, 97 S.Ct. 1021, 1028, 51 L.Ed.2d 270 (1977): Weinberger v. Wiesenfeld, supra, at 645, 95 S.Ct., at 1231, or when the statutory structure and its legislative history revealed that the classification was not enacted as compensation for past discrimination. Califano v. Goldfarb, supra, at 212-216, 97 S.Ct., at 1029-1032 (plurality opinion), 430 U.S., at 221-222, 97 S.Ct., at 1034-1035 (Stevens, J., concurring in judgment); Weinberger v. Wiesenfeld, supra, at 648, 95 S.Ct., at 1233.
3
The statutory scheme involved here is more analogous to those upheld in Kahn and Ballard than to those struck down in Wiesenfeld and Goldfarb. The more favorable treatment of the female wage earner enacted here was not a result of 'archaic and overbroad generalizations' about women, Schlesinger v. Ballard, supra, at 508, 95 S.Ct., at 577, or of 'the role-typing society has long imposed' upon women, Stanton v. Stanton, 421 U.S. 7, 15, 95 S.Ct. 1373, 1378, 43 L.Ed.2d 688 (1975), such as casual assumptions that women are 'the weaker sex' or are more likely to be child-rearers or dependents. Cf. Califano v. Goldfarb, supra; Weinberger v. Wiesenfeld, supra. Rather, 'the only discernible purpose of (§ 215's more favorable treatment is) the permissible one of redressing our society's longstanding disparate treatment of women.' Califano v. Goldfarb, supra, at 209 n. 8, 97 S.Ct., at 1028.
4
The challenged statute operated directly to compensate women for past economic discrimination. Retirement benefits under the Act are based on past earnings. But as we have recognized: 'Whether from over 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.' Kahn v. Shevin, 416 U.S., at 353, 94 S.Ct., at 1736. See generally id., at 353-354, and nn. 4-6, 94 S.Ct. at 1736-1737. Thus, allowing women, who as such have been unfairly hindered from earning as much as men, to eliminate additional low-earning years from the calculation of their retirement benefits works directly to remedy some part of the effect of past discrimination.5 Cf. Schlesinger v. Ballard, supra, at 508, 95 S.Ct., at 577.
5
The legislative history of § 215(b)(3) also reveals that Congress directly addressed the justification for differing treatment of men and women in the former version of that section and purposely enacted the more favorable treatment for female wage earners to compensate for past employment discrimination against women. Before 1956, the sexes were treated equally by § 215(b)(3); the computation it required turned on the attainment of 'retirement age,' which was then defined in 42 U.S.C. § 416(a) (1952 ed.) as 65 for both sexes.6 In 1956, however, retirement age was redefined as 62 for women and 65 for men, Social Security Amendments of 1956, § 102(a), 70 Stat. 809, thereby changing the calculation under § 215(b)(3). A House Report emphasizes that this reduction in the retirement age for women was purposely made to remedy discrimination against women in the job market:
6
'Your committee believes that the age of eligibility should be reduced to 62 for women workers. . . . A recent study by the United States Employment Service in the Department of Labor showed that age limits are applied more frequently to job openings for women than for men and that the age limits applied are lower.' H.R.Rep. No. 1189, 84th Cong., 1st Sess., 7 (1955).7
7
The effect of this change on § 215(b)(3) was also discussed in connection with the amendment of that section in 1961.8 Social Security Amendments of 1961, § 102(d)(2), 75 Stat. 135. During the hearings on that amendment Representative Watts asked why a woman would draw more benefits than a similarly situated man. After it was noted that this did not change the law as it had existed since 1956, Representative Boggs confirmed that the difference in treatment was not inadvertent:
8
'If I may interrupt, I think we went into this at great length some years ago when we adopted the 62-year provision for women and the theory was that a woman at that age was less apt to have employment opportunities than a man and despite the fact of some statistics to the effect that women live longer than men, I think the other fact is equally commanding, so there is some justification for a distinction between men and women.' Executive Hearings on Social Security Amendments of 1961, before the House Committee on Ways and Means, 87th Cong., 1st Sess., 146-147 (1961).
9
Thus, the legislative history is clear that the differing treatment of men and women in former § 215(b)(3) was not 'the accidental byproduct of a traditional way of thinking about females,' Califano v. Goldfarb, 430 U.S., at 223, 97 S.Ct., at 1035 (Stevens, J., concurring in judgment), but rather was deliberately enacted to compensate for particular economic disabilities suffered by women.
10
That Congress changed its mind in 1972 and equalized the treatment of men and women does not, as the District Court concluded, constitute an admission by Congress that its previous policy was invidiously discriminatory. 413 F.Supp., at 129. Congress has in recent years legislated directly upon the subject of unequal treatment of women in the job market.9 Congress may well have decided that '(t)hese congressional reforms . . . have lessened the economic justification for the more favorable benefit computation formula in § 215(b) (3).' Kohr v. Weinberger, 378 F.Supp. 1299, 1305 (ED Pa. 1974), vacated on other grounds, 422 U.S. 1050, 95 S.Ct. 2671, 45 L.Ed.2d 704 (1975). Moreover, elimination of the more favorable benefit computation for women wage earners, even in the remedial context, is wholly consistent with those reforms, whichrequire equal treatment of men and women in preference to the attitudes of 'romantic paternalism' that have contributed to the 'long and unfortunate history of sex discrimination.' Frontiero v. Richardson, 411 U.S. 677, 684, 93 S.Ct. 1764, 1769, 36 L.Ed.2d 583 (1973).
11
Finally, there is no merit in appellee's argument that the failure to make the 1972 amendment retroactive constitutes discrimination on the basis of date of birth. Oldage benefit payments are not constitutionally immunized against alterations of this kind. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Congress expressly reserved '(t)he right to alter, amend, or repeal any provision' of the Act, 42 U.S.C. § 1304, and the Fifth Amendment 'does not forbid . . . statutory changes to have a beginning and thus to discriminate between the rights of an earlier and later time.' Sperry & Hutchinson Co. v. Rhodes, 220 U.S. 502, 505, 31 S.Ct. 490, 491, 55 L.Ed. 561 (1911). It follows that Congress may replace one constitutional computation formula with another and make the new formula prospective only.
12
Reversed.
13
Mr. Chief Justice BURGER, with whom Mr. Justice STEWART, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST join, concurring in the judgment.
14
While I am happy to concur in the Court's judgment, I find it somewhat difficult to distinguish the Social Security provision upheld here from that struck down so recently in Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977). Although the distinction drawn by the Court between this case and Goldfarb is not totally lacking in substance, I questionwhether certainty in the law is promoted by hinging the validity of important statutory schemes on whether five Justices view them to be more akin to the 'offensive' provisions struck down in Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), and Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), or more like the 'benign' provisions upheld in Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975), and Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). I therefore concur in the judgment of the Court for reasons stated by Mr. Justice Rehnquist in his dissenting opinion in Goldfarb, in which Mr. Justice Stewart, Mr. Justice Blackmun, and I joined.
1
Under § 202(a) of the Act, 42 U.S.C. § 402(a) (1970 ed. and Supp. V), a fully insured individual who has reached retirement age is entitled upon application to a monthly old-age insurance benefit equal to his 'primary insurance amount.'
Section 215(a) of the Act, 42 U.S.C. § 415(a) (1970 ed. and Supp. V), sets out a table for determining the primary insurance amount. This
amount is based on an individual's 'average monthly wage' as defined in § 215(b) of the Act, 42 U.S.C. § 415(b) (1970 ed. and Supp. V).
Before it was amended in 1972, § 215(b) of the Act, 42 U.S.C. § 415(b), provided in part:
'(1) . . . (A)n individual's 'average monthly wage' shall be the quotient obtained by dividing
'(A) the total of his wages paid in and self-employment income credited to his 'benefit computation years' (determined under paragraph (2)), by
'(B) the number of months in such years.
'(2)(A) The number of an individual's 'benefit computation years' shall be equal to the number of elapsed years (determined under paragraph (3) of this subsection), reduced by five; except that the number of an individual's benefit computation years shall in no case be less than two.
'(B) An individual's 'benefit computation years' shall be those computation base years, equal in number to the number determined under subparagraph (A), for which the total of his wages and self-employment income is the largest.
'(C) For purposes of subparagraph (B), 'computation base years' include only calendar years in the period after 1950 and prior to the earlier of the following years
'(i) the year in which occurred . . . the first month for which the individual was entitled to old-age insurance benefits, or
'(ii) the year succeeding the year in which he died.
'(3) For purposes of paragraph (2), the number of an individual's elapsed years is the number of calendar years after 1950 . . . and before
'(a) in the case of a woman, the year in which she died or, if it occurred earlier but after 1960, the year in which she attained age 62.
'(C) in the case of a man who has not died, the year occurring after 1960 in which he attained (or would attain) age 65.'
2
Congress eliminated the distinction in 1972. As amended by § 104(b), 86 Stat. 1340, 42 U.S.C. § 415(b)(3) (1970 ed., Supp. V), now provides:
'(T)he number of an individual's elapsed years is the number of calendar years after 1950 . . . and before the year in which he died, or if it occurred earlier but after 1960, the year in which he attained age 62.'
The amendment, however, does not apply to men who reached age 62 before its effective date in 1972, and so the former statute continues to govern the determination of this and some other claims of male wage earners.
3
For example, in this case, the District Court found that appellee was awarded a monthly benefit of $185.70, but that a similarly situated female wage earner would have been awarded $204 per month. 413 F.Supp. 127, 128.
4
Four other federal courts have reached a contrary conclusion. Gruenwald v. Gardner, 390 F.2d 591 (CA2), cert. denied sub nom, Gruenwald v. Cohen, 393 U.S. 982, 89 S.Ct. 456, 21 L.Ed.2d 445 (1968); Kohr v. Weinberger, 378 F.Supp. 1299 (ED Pa.1974, vacated on other grounds, 422 U.S. 1050, 95 S.Ct. 2671, 45 L.Ed.2d 704 (1975); Polelle v. Secretary of HEW, 386 F.Supp. 443 (ND Ill.1974); McEvoy v. Weinberger, CCH Unempl.Ins.Rep. $17,414 (SD Fla., Aug. 28, 1973).
5
Even with the advantage provided by former § 215(b)(3), women on the average received lower retirement benefits than men. 'As of December 1972, the average monthly retirement insurance benefit for males was $179.60 and for females, $140.50.' Polelle v. Secretary of HEW, supra, 386 F.Supp., at 444 (emphasis omitted).
6
At that time, the calculation of the 'average monthly wage' under § 215(b) was somewhat different from the scheme set out in n. 1, supra, which was not adopted until Social Security Amendments of 1960, § 303(a), 74 Stat. 960. The role of § 215(b)(3) in the computation was similar under the old scheme, however, and the differences between the old and new methods
7
Congress deliberately adopted the change notwithstanding the argument urged upon it that reducing the retirement age would not benefit women. S.Rep. No. 2133, 84th Cong., 2d Sess., 14-15 (1956), U.S.Code Cong. & Admin.News 1956, p. 3877.
8
In 1961, in connection with the extension of reduced retirement benefits to men at age 62, the definition of retirement age in 42 U.S.C. § 416(a) was repealed, and the differing ages for the computation of 'elapsed years' under § 215(b)(3) were written explicitly into that section for the first time. §§ 102(c)(1), 102(d)(2), 75 Stat. 134, 135. It was at that time that § 215(b)(3) took on the form it was to retain until 1972. See nn. 1-2, supra.
9
See, e. g., Equal Pay Act of 1963, 29 U.S.C. § 206(d); Civil Rights Act of 1964, § 703(a), 42 U.S.C. § 2000e-2(a).
| 12
|
430 U.S. 325
97 S.Ct. 1191
51 L.Ed.2d 372
Michael V. COSTELLO et al.v.Louie L. WAINWRIGHT, Secretary, Florida Department of Offender Rehabilitation, et al.
No. 76-5920.
March 21, 1977.
PER CURIAM.
1
The motion to strike the brief of the United States as amicus curiae is denied.
2
Petitioners in this case attacked the over-crowding in Florida's prisons as violative of the Cruel and Unusual Punishments Clause of the Eight Amendment, made applicable to the States by the Fourteenth. A single District Judge found substantial constitutional violations and issued a preliminary injunction ordering the Division of Corrections either to reduce the inmate population or to increase prison capacity. In an en banc decision, the United States Court of Appeals for the Fifth Circuit vacated the District Court's decision on the ground that only a three-judge court convened in accordance with 28 U.S.C. § 2281 could order such relief. 539 F.2d 547 (1976).
3
On its face, the complaint that initiated this case involved no challenge to state statutes or regulations. There was thus no reason at the beginning of this litigation to suspect that a three-judge court should hear the case. See Moody v. Flowers, 387 U.S. 97, 104, 87 S.Ct. 1544, 1549, 18 L.Ed.2d 643 (1967); Baxter v. Palmigiano, 425 U.S. 308, 98 S.Ct. 1551, 47 L.Ed.2d 810 (1976); Morales v. Turman, 430 U.S. 322, 97 S.Ct. 1189, 51 L.Ed.2d 368. In granting equitable relief, however, the District Court contemplated as one means of relieving the prison system's unconstitutional overcrowding the possibility that state prison officials would have to violate their statutory duty to continue to accept custody of prisoners properly committed to them. The Court of Appeals concluded that such equitable relief could be granted only by a three-judge court, apparently because it viewed the possible temporary suspension of an otherwise valid state statute to effectuate federally mandated relief as equivalent to finding that statute unconstitutional.
4
We cannot agree. The applicability of § 2281 as written turns on whether a state statute is alleged to be unconstitutional, not on whether an equitable remedy for unconstitutional state administrative behavior ultimately impinges on duties imposed under concededly constitutional state statutes. To hold otherwise would require postponing the threshold question of jurisdiction until the merits of the controversy had been fully resolved and the broad outlines of equitable relief discerned. Section 2281 embodies no such wasteful and uncertain mandate.
5
Since we conclude that the single District Judge properly exercised full jurisdiction in this case, and that his judgment is, therefore, reviewable on the merits in the Court of Appeals (28 U.S.C. § 1291), the petition for a writ of certiorari and for leave to proceed in forma pauperis is granted, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
6
It is so ordered.
| 89
|
430 U.S. 349
97 S.Ct. 1197
51 L.Ed.2d 393
Daniel Wilbur GARDNER, Petitioner,v.State of FLORIDA.
No. 74-6593.
Argued Nov. 30, 1976.
Decided March 22, 1977.
Syllabus
Petitioner was convicted of first-degree murder in a Florida court. After the required separate sentencing hearing, the jury advised the court to impose a life sentence on the ground that the statutory mitigating circumstances required to be taken into account in imposing a sentence outweighed the aggravating circumstances. But the trial judge, relying in part on a presentence investigation report that he had ordered and portions of which were not disclosed to or requested by counsel for the parties, imposed the death sentence on the ground that a certain aggravating circumstance justified it and that there was no mitigating circumstance. The Florida Supreme Court affirmed the death sentence without expressly discussing petitioner's contention that the sentencing court had erred in considering the presentence report, including the confidential portion, in deciding to impose the death penalty, and without reviewing such confidential portion. Held: The judgment is vacated and the case is remanded. Pp. 355-364.
313 So.2d 675, vacated and remanded.
Mr. Justice STEVENS, joined by Mr. Justice STEWART and Mr. Justice POWELL, concluded that:
1
1. Petitioner was denied due process of law when the death sentence was imposed at least in part, on the basis of information that he had no opportunity to deny or explain. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed.2d 1337, distinguished. Pp. 355-362.
2
(a) In light of the constitutional developments whereby it is now recognized that death is a different kind of punishment from any other and that the sentencing process, as well as the trial itself, must satisfy due process, the capital sentencing procedure followed here is not warranted by any of the following justifications offered by the State: (i) an assurance of confidentiality is necessary to enable investigators to obtain relevant but sensitive disclosures about a defendant's background or character; (ii) full disclosure of a presentence report will unnecessarily delay the proceeding; (iii) such full disclosure, which often includes psychiatric and psychological evaluations, will occasionally disrupt the rehabilitation process; and (iv) trial judges can be trusted to exercise their sentencing discretion in a responsible manner, even though their decisions may be based on secret information. Pp. 357-360.
3
(b) Even if it were permissible upon finding good cause to withhold a portion of a presentence report from the defendant, and even from defense counsel, nevertheless the full report must be made a part of the record to be reviewed on appeal. Since the State must administer its capital-sentencing procedures with an even hand, that record must disclose to the reviewing court the considerations motivating the death sentence in every case in which it is imposed, since otherwise the capital-sentencing procedure would be subject to the defects that resulted in the holding of unconstitutionality in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Pp. 360-361.
4
(c) Here defense counsel's failure to request access to the full presentence report cannot justify the submission of a less complete record to the reviewing court than the record on which the trial judge based his decision to sentence petitioner to death, nor does such omission by counsel constitute an effective waiver of the constitutional error. Pp. 361-362.
5
2. The proper dispositiono f the case is to vacate the death sentence and remand the case to the Florida Supreme Court with directions to order further proceedings at the trial court level not inconsistent with this opinion, rather than, as the State urges, merely remanding the case to the Florida Supreme Court with directions to have the entire presentence report made a part of the record to enable that court to complete its reviewing function, since this latter procedure could not fully correct the error. P. 362.
6
Mr. Justice WHITE concluded, on the basis of the Eighth Amendment's ban on cruel and unusual punishments, that a procedure for selecting defendants for the death penalty that permits consideration of secret information in a presentence report relevant to the defendant's character and record fails to meet the 'need for reliability in the determination that death is the appropriate punishment,' Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944. Pp. 362-364.
7
Mr. Justice BLACKMUN concurred in the judgment on the basis of the judgments in Woodson v. North Carolina, supra, and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974. P. 364.
8
Charles H. Livingston, for petitioner.
9
Wallace E. Allbritton, for respondent.
10
Mr. Justice STEVENS announced the judgment of the Court and delivered an opinion, in which Mr. Justice STEWART and Mr. Justice POWELL joined.
11
Petitioner was convicted of first-degree murder and sentenced to death. When the trial judge imposed the death sentence he stated that he was relying in part on information in a presentence investigation report. Portions of the report were not disclosed to counsel for the parties. Without reviewing the confidential portion of the presentence report, the Supreme Court of Florida, over the dissent of two justices, affirmed the death sentence. 313 So.2d 675 (1975). We conclude that this procedure does not satisfy the constitutional command that no person shall be deprived of life without due process of law.
12
* On June 30, 1973, the petitioner assaulted his wife with a blunt instrument, causing her death. On January 10, 1974, after a trial in the Circuit Court of Citrus County, Fla., a jury found him guilty of first-degree murder.
13
The separate sentencing hearing required by Florida law in capital cases1 was held later on the same day. The State merelyy introduced two photographs of the decedent, otherwise relying on the trial testimony. That testimony, if credited, was sufficient to support a finding of one of the statutory aggravating circumstances, that the felony committed by petitioner 'was especially heinous, atrocious, or cruel.'2
14
In mitigation petitioner testified that he had consumed a vast quantity of alcohol during a day-long drinking spree which preceded the crime, and professed to have almost no recollection of the assault itself. His testimony, if credited, was sufficient to support a finding of at least one of the statutory mitigating circumstances.3
15
After hearing this evidence the jury was instructed to determine by a majority vote (1) whether the State had proved one of the aggravating circumstances defined by statute, (2) whether mitigating circumstances outweighed any such aggravating circumstance, and (3) based on that determination, whether the defendant should be sentenced to life or death.
16
After the jury retired to deliberate, the judge announced that he was going to order a presentence investigation of petitioner.4 Twenty-five minutes later the jury returned its advisory verdict. It expressly found that the mitigating circumstances outweighed the aggravating circumstances and advised the court to impose a life sentence. App. 131.
17
The presentence investigation report was completed by the Florida Parole and Probation Commission on January 28, 1974. On January 30, 1974, the trial judge entered findings of fact and judgment sentencing petitioner to death. His ultimate finding was that the felony 'was especially heinous, atrocious or cruel; and that such aggravating circumstances outweighs the mitigating circumstance, to-wit: none.' Id., at 138. As a preface to that ultimate finding, he recited that his conclusion was based on the evidence presented at both stages of the bifurcated proceeding, the arguments of counsel, and his review of 'the factual information contained in said pre-sentence investigation.' Ibid.
18
There is no dispute about the fact that the presentence investigation report contained a confidential portion which was not disclosed to defense counsel. Although the judge noted in his findings of fact that the State and petitioner's counsel had been given 'a copy of that portion (of the report) to which they are entitled,' ibid., counsel made no request to examine the full report or to be apprised of the contents of the confidential portion. The trial judge did not comment on the contents of the confidential portion. His findings do not indicate that there was anything of special importance in the undisclosed portion, or that there was any reason other than customary practice for not disclosing the entire report to the parties.
19
On appeal to the Florida Supreme Court, petitioner argued that the sentencing court had erred in considering the presentence investigation report, including the confidential portion, in making the decision to impose the death penalty. The per curiam opinion of the Supreme Court did not specifically discuss this contention, but merely recited the trial judge's finding, stated that the record had been carefully reviewed, and concluded that the conviction and sentence should be affirmed. The record on appeal, however, did not include the confidential portion of the presentence report.
20
Justice Ervin and Justice Boyd dissented on several grounds. They regarded the evidence as sufficient to establish a mitigating circumstance as a matter of law, and also concluded that it was fundamental error for the trial judge to rely on confidential matter not provided to the parties. They stated, in part:
21
'Additionally, it appears from the record that there was a 'confidential' portion of the PSI report made available to the trial judge which, was not provided to either Appellant or Appellee. In fact, it is unclear from the record whether this Court has been provided the 'confidential' portion thereof for our review, a critical final step between conviction and imposition of the death penalty one of the safeguards outlined in Dixon. (State v. Dixon, Fla., 283 So.2d 1 (1973).) What evidence or opinion was contained in the 'confidential' portion of the report is purely conjectural and absolutely unknown to and therefore unrebuttable by Appellant. We have no means of determining on review what role such 'confidential' information played in the trial judge's sentence, and thus I would overturn Appellant's death sentence on the basis of this fundamental error alone.'. 313 So.2d, at 678 (emphasis in original).
22
Petitioner's execution was stayed pending determination of the constitutionality of the Florida capital-sentencing procedure. Following the decision in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, holding that the Florida procedure, on its face, avoids the constitutional deficiencies identified in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, the Court granted certiorari in this case, 428 U.S. 908, 96 S.Ct. 3219, 49 L.Ed.2d 1216, to consider the constitutionality of the trial judge's use of a confidential presentence report in this capital case.5
II
23
The State places its primary reliance on this Court's landmark decision in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed.2d 1337. In that case, as in this, the trial judge rejected the jury're commendation of mercy and imposed the death sentence in reliance, at least in part, on material contained in a report prepared by the court's probation department. The New York Court of Appeals had affirmed the sentence, rejecting the contention that it was a denial of due process to rely on information supplied by witnesses whom the accused could neither confront nor cross-examine.
24
This Court referred to appellant's claim as a 'narrow contention,' id., at 243, 69 S.Ct., at 1081, and characterized the case as one which
25
'presents a serious and difficult question . . . relat(ing) to the rules of evidence applicable to the manner in which a judge may obtain information to guide him in the imposition of sentence upon an already convicted defendant.' Id., at 244, 69 S.Ct. at 1082.
26
The conviction and sentence were affirmed, over the dissent of two Justices.
27
Mr. Justice Black's opinion for the Court persuasively reasons why material developed in a presentence investigation may be useful to a sentencing judge, and why it may not be unfair to a defendant to rely on such information even if it would not be admissible in a normal adversary proceeding in open court. We consider the relevance of that reasoning to this case in Part III of this opinion. Preliminarily, however, we note two comments by Mr. Justice Black that make it clear that the holding of Williams is not directly applicable to this case.
28
It is first significant that in Williams the material facts concerning the defendant's background which were contained in the presentence report were described in detail by the trial judge in open court. Referring to this material, Mr. Justice Black noted:
29
'The accuracy of the statements made by the judge as to appellant's background and past practices was not challenged by appellant or his counsel, nor was the judge asked to disregard any of them or to afford appellant a chance to refute or discredit any of them by cross-examination or otherwise.' Ibid.
30
In contrast, in the case before us, the trial judge did not state on the record the substance of any information in the confidential portiono f the presentence report that he might have considered material.6 There was, accordingly, no similar opportunity for petitioner's counsel to challenge the accuracy or materiality of any such information.
31
It is also significant that Mr. Justice Black's opinion recognized that the passage of time justifies a re-examination of capital-sentencing procedures. As he pointed out:
32
'This whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions even for offenses today deemed trivial.' Id., at 247-248, 69 S.Ct., at 1083.
33
Since that sentence was written almost 30 years ago, this Court has acknowledged its obligation to re-examine capital-sentencing procedures against evolving standards of procedural fairness in a civilized society.7
III
34
In 1949, when the Williams case was decided, no significant constitutional difference between the death penalty and lesser punishments for crime had been expressly recognized by this Court. At that time the Court assumed that after a defendant was convicted of a capital offense, like any other offense, a trial judge had complete discretion to impose any sentence within the limits prescribed by the legislature.8 As long as the judge stayed within those limits, his sentencing discretion was essentially unreviewable and the possibility of error was remote, if, indeed, it existed at all. In the intervening years there have been two constitutional developments which require us to scrutinize a State's capital-sentencing procedures more closely than was necessary in 1949.
35
First, five Members of the Court have now expressly recognized that death is a different kind of punishment from any other which may be imposed in this country. Gregg v. Georgia, 428 U.S. 153, 181-188, 96 S.Ct. 2909, 2929-2932, 49 L.Ed.2d 859 (opinion of Stewart, Powell, and Stevens, JJ.); see id., at 231-241, 96 S.Ct. 2971, at 2973-2977, 49 L.Ed.2d 904 (Marshall, J., dissenting); Furman v. Georgia, 408 U.S., at 286-291, 92 S.Ct., at 2750-2753 (Brennan, J., concurring), 306-310, 92 S.Ct., at 2760-2763 (Stewart, J., concurring); see id., at 314-371, 92 S.Ct., at 2765-2794 (Marshall, J., concurring). From the point of view of the defendant, it is differentin both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.
36
Second, it is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336; Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326. The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process. See Witherspoon v. Illinois, 391 U.S. 510, 521-523, 88 S.Ct. 1770, 1776-1778, 20 L.Ed.2d 776.9
37
In the light of these developments we consider the justifications offered by the State for a capital-sentencing procedure which permits a trial judge to impose the death sentence on the basis of confidential information which is not disclosed to the defendant or his counsel.
38
The State first argues that an assurance of confidentiality to potential sources of information is essential to enable investigators to obtain relevant but sensitive disclosures from persons unwilling to comment publicly about a defendant's background or character. The availability of such information, it is argued, provides the person who prepares the report with greater detail on which to base a sentencing recommendation and, in turn, provides the judge with a better basis for his sentencing decision. But consideration must be given to the quality, as well as the quantity, of the information on which the sentencing judge may rely. Assurances of secrecy are conducive to the transmission of confidences which may bear no closer relation to fact than the average rumor or item of gossip, and may imply a pledge not to attempt independent verification of the information received. The risk that some of the information accepted in confidence may be erroneous, or may be misinterpreted, by the investigator or by the sentencing judge, is manifest.
39
If, as the State argues, it is important to use such information in the sentencing process, we must assume that in some cases it will be decisive in the judge's choice between a life sentence and a death sentence. If it tends to tip the scales in favor of life, presumably the information would be favorable and there would be no reason why it should not be disclosed. On the other hand, if it is the basis for a death sentence, the interest in reliability plainly outweighs the State's interest in preserving the availability of comparable information ino ther cases.
40
The State also suggests that full disclosure of the presentence report will unnecessarily delay the proceeding. We think the likelihood of significant delay is overstated because we must presume that reports prepared by professional probation officers, as the Florida procedure requires, are generally reliable.10 In those cases in which the accuracy of a report is contested, the trial judge can avoid delay by disregarding the disputed material. Or if the disputed matter is of critical importance, the time invested in ascertaining the truth would surely be well spent if it makes the difference between life and death.
41
The State further urges that full disclosure of presentence reports, which often include psychiatric and psychological evaluations, will occasionally disrupt the process of rehabilitation. The argument, if valid, would hardly justify withholding the report from defense counsel. Moreover, whatever force that argument may have in noncapital cases, it has absolutely no merit in a case in which the judge has decided to sentence the defendant to death. Indeed, the extinction of all possibility of rehabilitation is one of the aspects of the death sentence that makes it different in kind from any other sentence a State may legitimately impose.
42
Finally, Florida argues that trial judges can be trusted to exercise their discretion in a responsible manner, even though they may base their decisions on secret information. However acceptable that argument might have been before Furman v. Georgia, it is now clearly foreclosed.11 Moreover, the argument rests on the erroneous premise that the participation of counsel is superfluous to the process of evaluating the relevance and significance of aggravating and mitigating facts. Our belief that debate between adversaries is often essential to the truth-seeking function of trials requires us also to recognize the importance of giving counsel an opportunity to comment on facts which may influence the sentencing decision in capital cases.
43
Even if it were permissible to withhold a portion of the report from a defendant, and even from defense counsel, pursuant to an express finding of good cause for nondisclosure, it would nevertheless be necessary to make the full report a part of the record to be reviewed on appeal. Since the State must administer its capital-sentencing procedures with an even hand, see Proffitt v. Florida, 428 U.S., at 250-253, 96 S.Ct., at 2966-2967, it is important that the record on appeal disclose to the reviewing court the considerations which motivated the death sentence in every case in which it is imposed. Without full disclosure of the basis for the death sentence, the Florida capital-sentencing procedure would be subject to the defects would resulted in the holding of unconstitutionality in Furman v. Georgia.12 In this particular case, the only explanation for the lack of disclosure is the failure of defense counsel to request access to the full report. That failure cannot justify the submission of a less complete record to the reviewing court than the record on which the trial judge based his decision to sentence petitioner to death.
44
Nor do we regard this omission by counsel as an effective waiver of the constitutional error in the record. There are five reasons for this conclusion. First, the State does not urge that the objection has been waived. Second, the Florida Supreme Court has held that it has a duty to consider 'the total record,' Swan v. State, 322 So.2d 485, 489 (1975), when it reviews a death sentence. Third, since two members of that court expressly considered this point on the appeal in this case, we presume that the entire court passed on the question. Cf. Boykin v. Alabama, 395 U.S. 238, 240-242, 89 S.Ct. 1709, 1710-1712, 23 L.Ed.2d 274 and n. 3. Fourth, there is no basis for presuming that the defendant himself made a knowing and intelligent waiver, or that counsel could possibly have made a tactical decision not to examine the full report. Cf. Estelle v. Williams, 425 U.S. 501, 507-508, 96 S.Ct. 1691, 1694-1695, 48 L.Ed.2d 126. Fifth, since the judge found, in disagreement with the jury, that the evidence did not establish any mitigating circumstance, and since the presentence report was the only item considered by the judge but not by the jury, the full review of the factual basis for the judge's rejection of the advisory verdict is plainly required. For if the jury, rather than the judge, correctly assessed the petitioner's veracity, the death sentence rests on an erroneous factual predicate.
45
We conclude that petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.
IV
46
There remains only the question of what disposition is now proper. Petitioner's conviction, of course, is not tainted by the error in the sentencing procedure. The State argues that we should merely remand the case to the Florida, Supreme Court with directions to have the entire presentence report made a part of the record to enable that court to complete its reviewing function. That procedure, however, could not fully correct the error. For it is possible that full disclosure, followed by explanation or argument by defense counsel, would have caused the trial judge to accept the jury's advisory verdict. Accordingly, the death sentence is vacated, and the case is remanded to the Florida Supreme Court with directions to order further proceedings at the trial court level not inconsistent with this opinion.
47
Vacated and remanded.
48
THE CHIEF JUSTICE concurs in the judgment.
49
Mr. Justice WHITE, concurring in the judgment.
50
In Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), the Court addressed the question whether the mandatory death penalty imposed under the statute involved in that case was consistent with the Eight Amendment's prohibition against cruel and unusual punishments. The plurality opinion stated:
51
'The issue, like that explored in Furman, involves the procedure employed by the State to select persons for the unique and irreversible penalty of death.' Id., at 287, 96 S.Ct. at 2983. (Emphasis added.)
52
In holding that the failure to conduct the sort of posttrial sentencing proceeding which Florida law requires, and which was conducted in this case, rendered North Carolina's mandatory death penalty statute unconstitutional, the plurality said:
53
'(W)e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S. (86), at 100, 78 S.Ct. (590), at 597 (2 L.Ed.2d 630) (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
54
'This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.' Id., at 304-305, 96 S.Ct., at 2991-2992. (Emphasis added.)
55
The issue in this case, like the issue in Woodson v. North Carolina, supra, 'involves the procedure' employed by the State in selecting persons who will receive the death penalty. Here the sentencing judge indicated that he selected petitioner Gardner for the death penalty in part because of information contained in a presentence report which information was not disclosed to petitioner or to his counsel and to which petitioner had no opportunity to respond. A procedure for selecting people for the death penalty which permits consideration of such secret information relevant to the 'character and record of the individual offender,' id., at 304, 96 S.Ct., at 2991, fails to meet the 'need for reliability in the determination that death is the appropriate punishment' which the Court indicated was required in Woodson, supra, at 305, 96 S.Ct., at 2992. This conclusion stems solely from the Eighth Amendment's ban on cruel and unusual punishments on which the Woodson decision expressly rested, and my conclusion is limited, as was Woodson, to cases in which the death penalty is imposed. I thus see no reason to address in this case the possible application to sentencing proceedings in death or other cases of the Due Process Clause, other than as the vehicle by which the strictures of the Eighth Amendment are triggered in this case. For these reasons, I do not join the plurality opinion but concur in the judgment.
56
Mr. Justice BLACKMUN, concurring in the judgment.
57
Given the judgments of the Court in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976),* each attained by a plurality opinion of Justices Stewart, Powell, and Stevens, in combination with respective concurrences in the judgment by Justices Brennan and Marshall, I concur in the judgment the Court reaches in the present case.
58
Mr. Justice BRENNAN.
59
I agree for the reasons stated in the plurality opinion that the Due Process Clause of the Fourteenth Amendment is violated when a defendant facing a death sentence is not informed of the contents of a presentence investigation report made to the sentencing judge. However, I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2971, 49 L.Ed.2d 859 (1976) (Brennan, J., dissenting). I therefore would vacate the death sentence, and I dissent from the Court's judgment insofar as it remands for further proceedings that could lead to its imposition.
60
Mr. Justice MARSHALL, dissenting.
61
Last Term, this Court carefully scrutinized the Florida procedures for imposing thedeath penalty and concluded that there were sufficient safeguards to insure that the death sentence would not be 'wantonly' and 'freakishly' imposed. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). This case, however, belies that hope. While I continue to believe that the death penalty is unconstitutional in all circumstances, see Furman v. Georgia, 408 U.S. 238, 314, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346 (1972) (Marshall, J., concurring); Gregg v. Georgia, 428 U.S. 155, 231, 96 S.Ct. 2909, 2973, 49 L.Ed.2d 859 (1976) (Marshall, J., dissenting), and therefore would remand this case for resentencing to a term of life, nevertheless, now that Florida may legally take a life, we must insist that it be in accordance with the standards enunciated by this Court. In this case I am appalled at the extent to which Florida has deviated from the procedures upon which this Court expressly relied. It is not simply that the trial judge, in overriding the jury's recommendation of life imprisonment, relied on undisclosed portions of the presentence report. Nor is it merely that the Florida Supreme Court affirmed the sentence without discussing the omission and without concern that it did not even have the entire report before it. Obviously that alone is enough to deny due process and require that the death sentence be vacated as the Court now holds. But the blatant disregard exhibited by the courts below for the standards devised to regulate impositiono f the death penalty calls into imposition of the death penalty calls into proval of that system in Proffitt.
62
In Proffitt v. Florida, supra, this Court gave its approval to the new death penalty statute of Florida, but very carefully spelled out its reasons for doing so. The joint opinion of Justices Stewart, Powell, and Stevens (hereafter joint opinion) noted in particular that '$t)he Florida Supreme Court has stated . . . that '(i)n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ,' Tedder v. State, 322 So.2d 908, 910 (1975),' 428 U.S., at 249, 96 S.Ct., at 2965, and that the Florida 'statute requires that if the trial court imposes a sentence of death, 'it shall set forth in writing its finding upon which the sentence of death is based as to the facts: (a) (t)hat sufficient (statutory) aggravating circumstances exist . . . and (b) (t)hat there are insufficient (statutory) mitigating circumstances . . . to outweigh the aggravating circumstances.' (Fla.Stat.Ann.) 921.141(3) (Supp.1976-1977).' Id., at 250, 96 S.Ct., at 2965. In addition, the joint opinion, concerned that Florida provided no 'specific form of review,' found assurance in the fact that
63
'(s)ince, however, the trial judge must justify the imposition of death sentence with written findings, meaningful appellate review of each such sentence is made possible and the Supreme Court of Florida like its Georgia counterpart, considers its function to be to '(guarantee) that the (aggravating and mitigating) reasons present in one case will reach a similar result to that reached under similar circumstances in another case. . . . If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great.' State v. Dixon, 283 So.2d 1, 10 (1973).' Id., at 251, 96 S.Ct., at 2966. (Emphasis added.)
64
After studying the performance of the Florida Supreme Court in reviewing death cases, this Court satisfied itself that these guarantees were genuine and that 'the Florida court has undertaken responsibly to perform its function of death sentence review with a maximum of rationality and consistency,' Id., at 258-259, 96 S.Ct., at 2969, and 'has in effect adopted the type of proportionality review mandated by the Georgia statute' upheld in Gregg v. Georgia, supra, 428 U.S., at 259, 96 S.Ct., at 2969. The joint opinion placed great emphasis on this factor, reasoning that 'because of its statewide jurisdiction, (the Florida Supreme Court) can assure consistency, fairness, and rationality in the evenhanded operation of the state law.' Id., at 259-260, 96 S.Ct., at 2970.
65
In the present case, however, the Florida Supreme Court engaged in precisely the 'cursory or rubber-stamp review' that the joint opinion in Proffit trusted would not occur. Id., at 259, 96 S.Ct., at 2969. The jury, after considering the evidence, recommended a life sentence:
66
'We, the Jury, have heard evidence, under the sentencing procedure in the above cause, as to whether aggravating circumstances which were so defined in the Court's charge, existed in the capital offense here involved, and whether sufficient mitigating circumstances are defined in the Court's charge to outweigh such aggravating circumstances, do find and advise that the mitigating circumstances do outweigh the aggravating circumstances.
67
'We therefore advise the Court that a life sentence should be imposed herein upon the defendant by the Court.' App. 131.
68
The judge, however, ignored the jury's findings. His statutorily required written findings consisted of:
69
'(T)he undersigned concludes and determines that aggravating circumstances exist, to-wit: The capital felony was especially heinous, atrocious or cruel; and that such aggravating circumstances outweighs (sic) the mitigating circumstance, to-wit: none; and based upon the records of such trial and sentencing proceedings makes the following findings of facts, to-wit: '1. Thatthe victim died as a result of especially heinous, atrocious and cruel acts committed by the defendant, the nature and extent of which are reflected by the testimony of Dr. William H. Shutze, District Medical Examiner of the Fifth Judicial Circuit of the State of Florida, as follows: (followed by a list of 11 injuries to the deceased).' Id., at 138-139.
70
The Florida Supreme Court affirmed with two justices dissenting. The per curiam consisted of a statement of the facts of the murder, a verbatim copy of the trial judge's 'findings,' a conclusion that no new trial was warranted, and the following 'analysis':
71
'Upon considering all the mitigating and aggravating circumstances and careful review of the entire record in the cause, the trial court imposed the death penalty for the commission of the aforedescribed atrocious and heinous crime.
72
'Accordingly, the judgment and sentence of the Circuit Court are hereby affirmed.
73
'It is so ordered.' 313 So.2d 675 (1975).
74
From this quotation, which includes the entire legal analysis of the opinion, it is apparent that the State Supreme Court undertook none of the analysis it had previously proclaimed to be its duty. The opinion does not say that the Supreme Court evaluated the propriety of the death sentence. It merely says the trial judge did so. Despite its professed obligation to do so, the Supreme Court thus failed 'to determine independently' whether death was the appropriate penalty. The Supreme Court also appears to have done nothing 'to guarantee' consistency with other death sentences. Its opinion makes no comparison with the facts in other similar cases. Nor did it consider whether the trial judge was correct in overriding the jury's recommendation. There was no attempt to ascertain whether the evidence sustaining death was 'so clear and convincing that virtually no reasonable person could differ,' supra, at 366. Indeed, it is impossible for me to believe that that standard can be met in this case.
75
As the plurality notes, ante, at 352, there are two mitigating factors that could apply to this case and apparently were found applicable by the jury: 'The capital felony was committed while the defendant was under the infuence of extreme mental or emotional disturbance' and '(t)he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.' Fla.Stat.Ann. §§ 921.141(6)(b) and (f) (Supp. 1976). The purpose of these two categories is, as Justice Ervin observed in dissent below, "to protect that person who, while legally answerable for his actions, may be deserving of some mitigation of sentence because of his mental state.' (State v. Dixon, 283 So.2d 1, 10 (1973)).' 313 So.2d, at 679.
76
I agree with Justice Ervin that petitioner is such a person. It is undisputed that he had been drinking virtually the entire day and night prior to the killing. Both court-appointed psychiatrists found that petitioner was an alcoholic and that 'had he not been under the influence of alcohol at the time of the alleged crime, he would have been competent, knowing right from wrong and being capable of adhering to the right.' App. 11, 19. Furthermore, his actions after the murder falling asleep with his wife's dead body, seeking his mother-in-law's help the next morning because his wife did not appear to be breathing properly, weeping when he realized she might be dead, and waiting for the police to come with no attempt to escape are consistent with his being temporarily mentally impaired at the time of the crime. In light of these facts, it is not surprising that the jury found that the mitigating circumstances outweighed the aggravating.
77
Clearly, this is not a case where the evidence suggesting death is 'so clear and convincing that virtually no reasonable person could differ.' Had the Florida Supreme Court examined the evidence in the manner this Court trusted it would, I have no doubt that the jury recommendation of life imprisonment would have been reinstated. As Justice Ervin observed:
78
'This was a crime of passion in a marital setting in which the excessive use of alcohol was a material factor resulting in the homicide. As I read our statutes, this type of crime does notmerit the death penalty because the discretion exercised to impose that penalty here extends beyond the discretion the statutes repose in governmental officials for such purpose. I do not believe that the statutes contemplate that a crime of this nature is intended to be included in the heinous category warranting the death penalty. A drunken spree in which one of the spouses is killed traditionally has not resulted in the death penalty in this state.' 313 So.2d at 679.
79
In Proffitt, a majority of this Court was led to believe that Florida had established capital-sentencing procedures that would 'assure that the death penalty will not be imposed in an arbitrary or capricious manner.' 428 U.S., at 253, 96 S.Ct., at 2967. This case belies that promise and suggests the need to reconsider that assessment.*
80
Mr. Justice REHNQUIST, dissenting.
81
Had I joined the plurality opinion in last Term's Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), I would join the concurring opinion of my Brother White in this case. But if capital punishment is not cruel and unusual under the Eighth and Fourteenth Amendments, as the Court held in that case, the use of particular sentencing procedures, never previously held unfair under the Due Process Clause, in a case where the death sentence is imposed cannot convert that sentence into a cruel and unusual punishment. The prohibition of the Eighth Amendment relates to the character of the punishment, and not to the process by which it is imposed. I would therefore affirm the judgment of the Supreme Court of Florida.
1
Fla.Stat.Ann. § 921.141 (Supp.1976). This Court upheld the constitutionality of the statute in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913.
2
Fla.Stat.Ann. § 921.141(5)(h) (Supp.1976).
3
The statute provides, in part:
'(6) Mitigating circumstances. Mitigating circumstances shall be the following:
'(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
'(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.' Fla.Stat.Ann. §§ 921.141(b)(b), (f) (Supp.1976).
4
Florida Rules Crim.Proc. 3.710-3.713 authorize the presentence investigation. The Rules apply to all cases in which the trial court has discretion in sentencing, and make no reference to the special capital sentencing procedure at issue here.
5
In an appendix to its brief in this Court, the State has printed a copy of the confidential portion of the presentence report. Petitioner contests its authenticity. He argues, alternatively, that we should not review its contents because it was not made a part of the certified record in the state courts or in this Court; that consideration of the contents of the report in the first instance in this Court flouts the procedural regularity mandated for capital sentencing by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, and Proffitt v. Florida, or that, not having had an opportunity to present evidence to rebut the confidential portion of the report, it would be unfair and improper to require him to address its contents in this Court. Reply Brief for Petitioner 2-3.
It is not a function of this Court to evaluate in the first instance the possibly prejudicial impact of facts and opinions appearing in a presentence report. We therefore do not consider the contents of the appendix to the State's brief.
6
In fact, the only reference in the record to the confidential portion was the inference to be drawn from the ambiguous mention of the "portion . . . to which they are entitled," supra, at 353, in the judge's written findings of fact issued on the day sentence was announced.
7
Gregg v. Georgia, 428 U.S. 153, 171-173, 179-181, 96 S.Ct. 2909, 2924-2925, 2928-2929, 49 L.Ed.2d 859; Furman v. Georgia, supra, at 299-300, 92 S.Ct., at 2757-2758 (Brennan, J., concurring); McGautha v. California, 402 U.S. 183, 197-203, 91 S.Ct. 1454, 1462-1465, 28 L.Ed.2d 711; Witherspoon v. Illinois, 391 U.S. 510, 519 n. 15, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776.
8
See Williams v. New York, 337 U.S. 241, 251-252, 69 S.Ct. 1079, 1085, 93 L.Ed. 1337.
9
The fact that due process applies does not, of course, implicate the entire panoply of criminal trial procedural rights.
'Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. . . . Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.' Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct.2593, 2600, 33 L.Ed.2d 484.
10
Our presumption that the reports are normally reliable is, of course, not inconsistent with our concern about the possibility that critical unverified information may be inaccurate and determinative in a particular case.
11
Furman v. Georgia, 408 U.S., at 313-314, 92 S.Ct., at 2764-2765 (White, J., concurring). This argument is inconsistent with the basis upon which the Florida capital-sentencing procedure was upheld, Proffitt v. Florida, 428 U.S., at 254, 96 S.Ct., at 2967.
12
The Supreme Court of Florida decided petitioner's case before our decision in Proffitt v. Florida, supra, and before its own consideration of Proffitt v. State, 315, So.2d 461 (1975), or of Tedder v. State, 322 So.2d 908 (1975). Therefore, we cannot join Mr. Justice Marshall's criticism of the Florida courts for their failure to follow the teaching of those cases.
*
See also Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
*
The plurality responds, ante, at 361 n. 12, that it cannot criticize the Florida courts because the decision in petitioner's case preceded both our decision in Proffitt and the Florida Supreme Court's decision in Proffitt and Tedder. It conveniently ignores the fact that petitioner's case came after several key Florida death penalty cases, most notably State v. Dixon, 283 So.2d 1 (Fla.1973), in which the Florida Supreme Court 'guaranteed' that its review would insure similar results in similar cases. Proffitt v. Florida, 428 U.S. 242, 251, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976), quoting State v. Dixon, supra, at 10.
More significantly, however, the plurality does not so much as question the procedure followed here and does nothing to insure that Florida will not again condemn this man to die in blatant disregard of its own rules. Compliance with Proffitt requires that on remand the trial judge give full consideration to the mitigating circumstances in the case and, if he again rejects the jury's recommendation of life imprisonment, his reasons "be so clear and convincing that virtually no reasonable person could differ." 428 U.S., at 249, 96 S.Ct., at 2965. On review, the Florida Supreme Court must evaluate the facts itself and perform the comparative analysis it failed to do previously. It may be that my Brothers in the majority believe these requirements to be so obvious as not to need mention. Nevertheless, where a man's life is at stake, such blind faith is just not enough even after the decisionin Proffitt.
| 01
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430 U.S. 327
97 S.Ct. 1211
51 L.Ed.2d 376
Joseph JUIDICE, etc., et al., Appellants,v.Harry VAIL, Jr., et al.
No. 75-1397.
Argued Nov. 30, 1976.
Decided March 22, 1977.
Syllabus
Following their failure to satisfy judgments against them in various civil actions in New York State courts, appellees, pursuant to provisions of the New York Judiciary Law, were held in contempt by appellant justices, and except for appellees Ward and Rabasco, were fined and imprisoned for disobeying subpoenas to appear in supplemental proceedings brought by the respective judgment creditors in an attempt to collect the judgments. Appellees subsequently brought a class action against appellants in Federal District Court under 42 U.S.C. § 1983, seeking to have the statutory provisions authorizing contempt enjoined on federal constitutional grounds not raised in the state proceedings. By the time this action was filed all the appellees, except Ward and Rabasco, had paid their fines and were released from jail, whereas Ward and Rabasco alleged that they were threatened with imprisonment. The District Court declared the statute unconstitutional and enjoined its enforcement. Held:
1. Only appellees Ward and Rabasco have standing to seek injunctive relief, since they are subject to pending proceedings in the state courts. The other appellees, absent any allegation or finding that they were threatened with further proceedings, have no standing, since, having been released from jail, they no longer have a live controversy with appellants or other state officials as to either the contempt citations or the short periods of incarceration that would entitle them to injunctive relief. Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482, distinguished. Pp. 331-333.
2. The District Court erred in enjoining enforcement of the contempt procedures. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; Huffman v. Pursue, Ltd., supra. Pp. 333-339.
(a) The principles of federalism and comity enunciated in Younger and Huffman apply to a case in which the State's contempt process is involved. Whether disobedience of a court-sanctioned subpoena, and the resulting process leading to a finding of contempt of court, is labeled civil, quasi-criminal, or criminal, the salient fact is that federal-court interference with the State's contempt process is 'an offense to the State's interest . . . likely to be every bit as great as it would be were this a criminal proceeding,' Huffman, supra, 420 U.S. at 604, 95 S.Ct. at 1208. Moreover, such interference with the contempt process not only 'unduly interfere(s) with the (State's) legitimate activities,' Younger, supra, 401 U.S. at 44, 91 S.Ct. at 750, but also 'can readily be interpreted 'as reflecting negatively upon the state court's ability to enforce constitutional principles." Huffman, supra, 420 U.S. at 604, 95 S.Ct. at 1208. Pp. 333-336.
(b) Appellees clearly had an opportunity to present their federal claims in the state proceedings, and no more is required to invoke Younger abstention. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 distinguished. Pp. 336-337.
(c) The exceptions to application of the Younger and Huffman principles are not present here, where it cannot be said that the New York statutes in question are flagrantly and patently unconstitutional, and where there are neither allegations, proof, nor findings that appellants are enforcing the contempt procedures in bad faith are motivated by a desire to harass. Pp. 338-339.
406 F.Supp. 951, reversed.
A. Seth Greenwald, New York City, for appellants.
Jane E. Bloom, Poughkeepsie, for appellees.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Appellee Harry Vail, Jr., is a judgment debtor who was held in contempt of court by the County Court of Dutchess County, N.Y., and who thereafter sought to have the statutory provisions authorizing contempts enjoined as unconstitutional in an action brought under 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York. The state-court proceedings against Vail were found by the District Court to be in most respects representative of those against the other named appellees as well.1
2
Vail defaulted on a credit arrangement with the Public Loan Co., and in January 1974, a default judgment for $534.36 was entered against him in the City Court of Poughkeepsie, N.Y. Three months later, when the judgment remained unpaid, Vail was served with a subpoena requiring him to attend a deposition so as to give information relevant to the satisfaction of the judgment.2 The subpoena required him to appear at the office of the creditor's attorney on May 28, a little more than a month after the date on which it was served, and stated, as is required by N.Y.Civ.Prac. Law § 5223 (McKinney 1963), that 'failure to comply . . . is punishable as a contempt of court.'
3
Vail did not appear for the deposition. Nearly two months after the scheduled deposition date, appellant Juidice, a Justice of the Dutchess County Court, issued an order requiring Vail to appear in that court on August 13 to show cause why he should not be punished for contempt.3 Vail failed to appear for that hearing. On August 30, appellant Juidice entered an order holding Vail in contempt and imposing a fine in the amount of $250 plus costs.4 Vail failed to pay the fine. On September 23, appellant Juidice issued an ex parte commitment order,5 and Vail was arrested and jailed pursuant to this order on October 1. He was released the following day when he paid the fine which had been imposed by the order.
4
Shortly thereafter, Vail, who had ignored for a period of more than nine months every stage of the state-court proceedings in whichhe had been a defendant, became a plaintiff in an action brought in the United States District Court. He and his coplaintiffs there sought to enjoin, on behalf of a class of judgment debtors, the use of the statutory contempt procedures authorized by New York law and employed by appellant justices on the ground that the procedures leading to imprisonment for contempt of court violated the Fourteenth Amendment to the United States Constitution. As they never appeared in the New York courts, they obviously did not raise these constitutional claims in the state-court proceedings. The contentions made before the District Court, however, could have been raised by appellees in the state courts, as a defense to the ongoing proceedings.6 Had the County Court ruled against these contentions, appellees could have appealed to the Appellate Division of the Supreme Court.7 They chose, by resorting to the federal courts, not to avail themselves of this forum afforded them by the State of New York. We must decide whether, with the existence of an available forum for raising constitutional issues in a state judicial proceeding, the United States District Court could properly entertain appellees § 1983 action in light of our decisions in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). We hold that it could not.
5
* A three-judge District Court was convened in response to appellees' complaint and the action was later certified as a Fed. Rule Civ.Proc. 23(b)(2) class action. The class was defined to include 'all persons who have been, or are presently subject to the civil contempt proceedings contained in the challenged sections of the Judiciary Law.' App. to Jurisdictional Statement 18a. At the same time the District Court rendered an opinion granting partial summary judgment to the appellees and
6
'declaring that Sections 756, 757, 770, 772, 773, 774 and 775 of the Judiciary Law of the State of New York are unconstitutional on their face and permanently enjoining the operation of said statutes against plaintiffs and members of their class, namely, all persons who have been or are presently subject to civil contempt proceedings pursuant to the above sections of the Judiciary Law . . ..' Id., at 20a.
7
Appellants in this Court challenged the District Court's failure to abstain on Younger grounds as well as its decision on the merits. We noted probable jurisdiction, 426 U.S. 946, 96 S.Ct. 3164, 49 L.Ed.2d 1182, and since we agree with appellants' first contention we do not reach the merits of the constitutional dispute.8
8
Although raised by neither of the parties, we are first obliged to examine the standing of appellees, as a matter of the case-or-controversy requirement associated with Art. III, to seek injunctive relief in the District Court. North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971); O'Shea v. Littleton, 414 U.S. 488, 498-498, 94 S.Ct. 669, 675-677, 38 L.Ed.2d 674 (1974). At the time this lawsuit was commenced, or the additional appellees added, the named appellees, except Patrick Ward and Joseph Rabasco, had already been imprisoned pursuant to the contempt order, and, again excepting Ward and Rabasco, had been released after payment of the court-imposed fine. Ward had not been imprisoned, but alleged that he was 'in imminent danger of being imprisoned pursuant to the Order of Contempt . . ..' Complaint $55. A temporary restraining order, which was remained in effect throughout this lawsuit, was issued by the District Court, enjoining the State from incarcerating Ward pursuant to the contempt order. Rabasco similarly alleged the threat of imprisonment after the issuance by the state court of an order to show cause which he has not complied with. The District Court restrained further state proceedings against Rabasco.
9
All of the named appellees, except Ward and Rabasco, then, having been released from jail, no longer had a live controversy with appellants or other New York State officials as to either the contempt citation or the short periods of incarceration which would entitle them to injunctive relief. These New York supplemental proceedings, which follow judgments on a debt, differ in this respect from the Ohio State proceedings involved in Huffman, supra. In Huffman, the Ohio State court had closed down the federal plaintiff's movie house for a period of time in the future. Although its decree had become final at the time the federal plaintiff instituted its federal action, the effect of the decree continued. 420 U.S., at 598, 95 S.Ct., at 1205. That plaintiff accordingly had the requisite standing. O'Shea v. Littleton, supra, at 495-496, 94 S.Ct., at 676. Here, however, once the period of incarceration is served or the fine paid, the effect of the orders imposing a fine or commitment has expended itself. And, in the case where the payment of the fine satisfies the entire judgment, not only the orders in the supplemental proceedings but the original judgment as well is rendered functus officio. As the complaint does not allege, and as the District Court did not find, that these appellees were threatened with further or repeated proceedings, only Ward and Rabasco had the necessary standing to seek injunctive relief.9 See Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Appellees Ward and Rabasco do have standing, since they are subject to pending proceedings in the state courts. Since Ward and Rabasco have standing, and since their standing, unlike that of the plaintiff in Steffel v. Thompson, supra, is predicated on the existence of a pending, and not merely a threatened, proceeding, we deal with appellants' Younger contentions.
10
The District Court decided that our holdings in Younger and Huffman did not mandate dismissal of the complaint in this case, because the action sought to be enjoined in Younger was a criminal prosecution, and the action sought to be enjoined in Huffman was for the abatement of a civil nuisance and therefore closely akin to a criminal proceeding.10 This was not an implausible reading of our holdings in those cases, since in Huffman, the most recent of the two, we had reserved the applicability of abstention to civil cases generally in this language:
11
'Informed by the relevant principles of comity and federalism, at least three Courts of Appeals have applied Younger when the pending state proceedings were civil in nature. See Duke v. Texas, 477 F.2d 244 (CA5 1973); Lynch v. Snepp, 472 F.2d 769 (CA4 1973); Cousins v. Wigoda, 463 F.2d 603 (CA7 1972). For the purposes of the case before us, however, we need make no general pronouncements upon the applicability of Younger to all civil litigation. It suffices to say that for the reasons heretofore set out, we conclude that the District Court should have applied the tests laid down in Younger in determining whether to proceed to the merits of appellee's prayer for relief against this Ohio civil nuisance proceeding.' 420 U. S., at 607, 95 S.Ct., at 1209.
12
We now hold, however, that the principles of Younger and Huffman are not confined solely to the types of state actions which were sought to be enjoined in those cases. As we emphasized in Huffman, the "more vital consideration" behind the Younger doctrine of nonintervention lay not in the fact that the state criminal process was involved but rather in
13
"the notion of 'comity,' that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." Huffman, 420 U.S., at 601, 95 S.Ct., at 1206, quoting Younger, 401 U.S., at 44, 91 S.Ct., at 750.
14
This is by no means a novel doctrine. In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the watershed case which sanctioned the use of the Fourteenth Amendment to the United States Constitution as a sword as well as a shield against unconstitutional conduct of state officers, the Court said:
15
'But the Federal court cannot, of course, interfere in a case where the proceedings were already pending in a state court. Taylor v. Taintor, 16 Wall. 366-370, 21 L.Ed. 287-290; Harkrader v. Wadley, 172 U.S. 148, 19 S.Ct. 119, 43 L.Ed. 399.' Id., at 162, 28 S.Ct., at 455.11
16
These principles apply to a case in which the State's contempt process is involved. A State's interest in the contempt process, through which it vindicates the regular operation of its judicial system, so long as that system itself affords the opportunity to pursue federal claims within it, is surely an important interest. Perhaps it is not quite as important as is the State's interest in the enforcement of its criminal laws, Younger, supra, or even its interest in the maintenance of a quasi-criminal proceeding such as was involved in Huffman, supra. But we think it is of sufficiently great import to require application of the principles of those cases. The contempt power lies at the core of the administration of a State's judicial system, cf. Ketchum v. Edwards, 153 N.Y. 534, 539, 47 N.E. 918, 920 (1897). Whether disobedience of a court-sanctioned subpoena, and the resulting process leading to a finding of contempt of court, ios labeled civil, quasi-criminal, or criminal in nature, we think the salient fact is that federal-court interference with the State's contempt process is 'an offense to the State's interest . . . likely to be every bit as great as it would be were this a criminal proceeding.' Huffman, supra, 420 U.S. at 604, 95 S.Ct. at 1208.12 Moreover, such interference with the contempt process not only 'unduly interfere(s) with the legitimate activities of the Stat(e),' Younger, supra, 401 U.S., at 44, 91 S.Ct., at 750, but also 'can readily be interpreted 'as reflecting negatively upon the state courts' ability to enforce constitutional principles." Huffman, supra, 420 U.S., at 604, 95 S.Ct., at 1208.13
17
The District Court relied upon our decision in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed. 54 (1975), to justify its refusal to dismiss appellees' suit, and it spoke of the possibility that a debtor in the position of appellees might be 'thrown in jail without an actual hearing' (emphasis added). But Gerstein explained the reason for the inapplicability of Younger to that case in a way which clearly distinguishes it from this:
18
'The District Court correctly held that respondents' claim for relief was not barred by the equitable restrictions on fedral intervention in state prosecutions, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution.' 420 U.S., at 108, n. 9, 95 S.Ct., at 860 n. 9. (Emphasis added.)
19
Here it is abundantly clear that appellees had an opportunity to present their federal claims in the state proceedings.14 No more is required to invoke Younger abstention. There is no support in Gerstein or in our other cases for the District Court's belief that the state courts must have an actual hearing (to which a recalcitrant defendant would presumably be brought by force) in order for Younger and Huffman to apply. Appellees need be accorded only an opportunity to fairly pursue their constitutional claims in the ongoing state proceedings, Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973), and their failure to avail themselves of such opportunities does not mean that the state procedures were inadequate.15 Presumptively, therefore, the principles which underlie Younger call for dismissal of the action.
II
20
We noted in Huffman that Younger principles do not apply, even where otherwise applicable,
21
'in those cases where the District Court properly finds that the state proceeding is motivated by a desire to harass or is conducted in bad faith, or where the challenged statute is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it'" Huffman, 420 U.S., at 611, 95 S.Ct., at 1212.
22
We think it wholly impossible to say that the New York statutes in question here met the second part of this exception. Nor is the first part of the exception either alleged in appellees' complaint or proved by their evidence. While some paragraphs of the complaint could be construed to make such allegations as to the creditors, there are no comparable allegations with respect to appellant justices who issued the contempt orders. This exception may not be utilized unless it is alleged and proved that they are enforcing the contempt procedures in bad faith or are motivated by a desire to harass. Cf. Cameron v. Johnson, 390 U.S. 611, 619, 88 S.Ct. 1335, 1339-1340, 20 L.Ed.2d 182 (1968). There are neither allegations, proof, nor findings to that effect here.
23
We conclude that the District Court erred in enjoining enforcement of the New York Judiciary Law's contempt procedures for the reasons of federalism and comity enunciated in Younger and Huffman.16 Its judgment is accordingly
24
Reversed.
25
Mr. Justice STEVENS, concurring in the judgment.
26
The major premise underlying the Court's holding in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, is that a court of equity should not act when the moving party has an adequate remedy at law.1 Consistently with Younger, a court of equity may have a duty to act if the alternative legal remedy is inadequate. Indeed, the major premise underlying the Court's holding in Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705, is a recognition of the unfortunate fact that state proceedings are sometimes inadequate to vindicate federal rights.2
27
The ultimate question in this case concerns the constitutionality of New York procedures designed to discover the assets of delinquent judgment debtors. If, as appellees' contend, these procedures violate the Due Process Clause of the Fourteenth Amendment, they cannot provide an adequate remedy for appellees' federal claim.3 For the federal remedy that appellees seek is protection against being required to participate in an unconstitutional judicial proceeding. Even ultimate success in such a proceeding would not protect them from the harm they seek to avoid. The challenged state procedures, therfore, cannot themselves, provide an adequate remedy for the alleged federal wrong.4 By hypothesis, in a case such as this, Younger abstention is inappropriate.
28
I am less certain about the possible applicability of Pullman abstention, Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, on which Mr. Justice STEWART relies. I am persuaded, however, that we know enough about the way the New York procedure is actually administered to form a reliable opinion about its validity. I believe, therefore, we have a duty to reach the merits.
29
As the Court's recitation of the fact demonstrates, the New York procedure provides for adequate notice and gives the debtor adequate opportunities to beheard. Moreover, there is no denial of the impecunious debtor's right to counsel because proof of indigency, which would necessarily precede any appointment of counsel, would also provide a defense to a contempt charge. The New York procedure does not, therefore, deny the judgment debtor due process of law. Accordingly, I concur in the Court's judgment.
30
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
31
I dissent. My earlier dissent in Huffman v. Pursue, Ltd., 420 U.S. 592, 613-618, 95 S.Ct. 1200, 1212-1215, 43 L.Ed.2d 482 (1975), details the grounds for my disagreement with the Court's extension of Younger principles to any state civil proceedings, including the form they take in Huffman and the instant case, and no purpose would be served in restating those reasons here. I repeat, however, my strong disagreement with the process begun in Huffman, carried to the extreme in last Term's Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), and furthered today, of stripping all meaningful content from 42 U.S.C. § 1983. For, as I have said before: 'Even if the extension of Younger v. Harris to pending state civil proceedings can be appropriate in any case . . . it is plainly improper in the case of an action by a federal plaintiff, as in this case, grounded upon 42 U.S.C. § 1983,' 420 U.S., at 616, 95 S.Ct., at 1214. Congress created this cause of action over a century ago, and at the same time expressly charged the federal judicial system with responsibility for the vindication and enforcement of federal rights under it against unconstitutional action under color of state law 'whether that action be executive, legislative, or judicial,' Mitchum v. Foster, 407 U.S. 225, 240, 92 S.Ct. 2151, 2161, 32 L.Ed.2d 705 (1972) (emphasis in original). In congressional contemplation, the pendency of state civil proceedings was to be wholly irrelevant. 'The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights . . ..' Id., at 242, 92 S.Ct., at 2162. 'Section 1983 opened the federal courts to private citizens, offering a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation.' Id., at 239, 92 S.Ct., at 2160. That statute, and the Judiciary Act of 1875, 18 Stat. 470, which granted the federal courts general federal-question jurisdiction, completely altered Congress' pre-Civil War policy of relying on state courts to vindicate rights arising under the Constitution and federal laws. These statutes constituted the lower federal courts "the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States." Steffel v. Thompson, 415 U.S. 452, 464, 94 S.Ct. 1209, 1218, 39 L.Ed.2d 505 (1974) (emphasis in original).
32
'In thus expanding federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, '. . . to guard, enforce, and protect every right granted or secured by the Constitution of the United States.' * * * 'We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum. . . ." Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967). This is true notwithstanding the possibility of review by this court of state decisions, for 'even when available by appeal rather than only by discretionary writ of certiorari, (that possibility) is an inadequate substitute for the initial District Court determination . . . to which the litigant is entitled in the federal courts.' England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 416, 84 S.Ct. 461, 465, 11 L.Ed.2d 440 (1964).
33
In requiring the District Court to eject the federal plaintiff from the federal courthouse and to force him to seek vindication of his federal rights in pending state proceedings, the Court effectively cripples the congressional scheme enacted in § 1983. The crystal clarity of the congressional decision and purpose in adopting § 1983, and the unbroken line of this Court's cases enforcing that decision, expose Huffman and today's decision as deliberate and conscious floutings of a decision Congress was constitutionally empowered to make. It stands the § 1983 remedy on its head to deny the § 1983 plaintiff access to the federal forum because of the pendency of state civil proceedings where Congress intended that the district court should entertain his suit without regard to the pendency of the state suit. Rather than furthering principles of comity and our federalism, forced federal abdication in this context undercuts one of the chief values of federalism the protection and vindication of important and overriding federal civil rights, which Congress, in § 1983 and the Judiciary Act of 1875, ordained should be a primary responsibility of the federal courts.
34
Mitchum v. Foster, supra, buttresses this conclusion. Mitchum held that § 1983 comes within the 'expressly authorized' exception of 28 U.S.C. § 2283 so as to permit a federal district court in a § 1983 suit to stay a proceeding in a state court. The process begun in Huffman and furthered today of cutting back the remedies available in federal court under § 1983 plainly reintroduces much of the rigidity of § 2283, thus realizing the prophecy that if Younger were extended to civil cases, 'the significance of Mitchum for those seeking relief from state civil proceedings would largely be destroyed, and the recognition of section 1983 as an exception to the Anti-Injunction Statute would have been a Pyrrhic victory.' The Supreme Court, 1971 Term, 86 Harv.L.Rev. 50, 217-218 (1972).
35
Today's decision extends Huffman, which labeled the state nuisance proceeding 'in important respects . . . more akin to a criminal prosecution than are most civil cases.' 420 U.S., at 604, 95 S.Ct., at 1208. By contrast the underlying suits in the New York courts here were collection suits typically involving small loans, and usually terminating in default judgments. Further, whereas in Huffman state officials were parties in the state-court suit, here those suits are between purely private parties. Whatever the importance of the State's direct interest in Huffman in closing theaters exhibiting alleged obscene films, one must strain hard to discover any comparable state interest here in having federal rights adjudicated in a state rather than federal forum. Thus Huffman's 'quasi-criminal' rationale and today's reliance on state 'contempt power' are revealed to be only covers for the ultimate goal of denying § 1983 plaintiffs the federal forum in any case, civil or criminal, when a pendng state proceeding may hear the federal plaintiff's federal claims.* This is nothing less than plain refusal to enforce the congressional direction, and for all practical purposes reduces Mitchum v. Foster to an empty shell.
36
Moreover, a requirement that the § 1983 plaintiff present his constitutional challenge in a suit between purely private parties pending in a state court may not be viewed as an unmixed blessing by the States. When Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), was decided, purely private state-court suits were seen as possing entirely different considerations from criminal prosecutions. Id., at 55, and n. 2, 91 S.Ct., at 757, and n. 2 (Stewart, J., concurring). Pending state criminal proceedings have always been viewed as paradigm cases involving paramount state interests. Huffman, 420 U.S., at 613-614, 95 S.Ct., at 1212-1213 (Brennan, J., dissenting). But remitting the decision of the constitutionality of state statutes to state civil proceedings between purely private parties may actually run counter to state interests. If the State may not be heard in the state civil case, defense of the constitutionality of its statute would be solely in the hands of a party having neither the State's esources, experts, nor governmental interest in sustaining the validity of the statute. A dilemma would be posed even for officials of a State like New York having procedures that permit, N.Y.Civ.Prac. Law § 1012(b) (McKinney 1976), and in some cases require, N.Y.Exec. Law § 71 (McKinney 1972), state intervention in suits raising constitutional challenges to state statutes. They must choose whether to intervene in countless private lawsuits brought all over the State implicating the constitutionality of state statutes, or not to intervene and risk adverse decisions having effects far beyond the interests of the particular private parties. By contrast, a § 1983 suit in federal court necessarily names the State or its officials as defendants, and the litigation focuses squarely on the issue of the validity of the statute, with the State defendant its own interest directly.
37
Perhaps the process of eviscerating § 1983 should not come as a surprise. This Court in a series of decisions in other contexts has shaped the doctrines of jurisdiction, justiciability, and remedy so as increasingly to bar the federal courthouse door to litigants with substantial federal claims. See Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The determination to keep § 1983 litigants out of the federal courthouse if they can be remitted to a state court, reflected not only in Huffman and today's decision but in other decisions, e. g., Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), hardly serves the values of federalism, any more than did last Term's decisions that so circumscribed the centuries-old remedy of habeas corpus as to weaken drastically the federal courts' ability to safeguard individuals from unconstitutional imprisonment. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976).
38
These decisions have in common that they have been rendered in the name of federalism. But they have given this great concept a distorted and disturbing meaning. Under the banner of vague, undefined notions of equity, comity, and federalism, the Court has embarked upon the dangerous course of condoning both isolated, Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), and systematic, Rizzo v. Goode, supra, violations of civil liberties. Such decisions hardly bespeak a true concern for equity. Nor do they properly reflect the nature of our federalism. 'Adopting the premise that state courts can be trusted to safeguard individual rights, the Supreme Court has gone on to limit the protective role of the federal judiciary. But in so doing it has forgotten that one of the strengths of our federal system is that it provides a duble source of protection for the rights of our citizens. Federalism is not served when the federal half of that protection is crippled.' Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 502-503 (1977). I dissent.
39
Mr. Justice STEWART, dissenting.
40
The District Court found New York's statutorily specified civil contempt procedures constitutionally inadequate. It reached that conclusion without the benefit of a state-court construction of the statute's procedural requirements; without consideration of whether the procedural infirmities found were limited to the class of subpoenaed civil debtors who originally filed suit; without, indeed, a determination as to whether the challenged procedures accusrately reflect statewide New York practice, or were instead confined to Dutchess County.* Constitutional adjudication in the face of such legal and factual imponderables is foolhardy: The subject matter of the suit is unclear, and the very need for constitutional adjudication is uncertain.
41
When a federal district court confronts such uncertainty in state law, its proper course is to abstain from final resolution of the federal issues until the state courts have been accorded an opportunity authoritatively to interpret the state statutory scheme being challenged. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971. The state-court construction may obviate or significantly modify the federal questions seemingly presented, thus avoiding 'unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law and premature constitutional adjudication.' Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50. Those considerations were sacrificed here, when the District Court nevertheless proceeded to measure the ambigupus provisions of state law against the Due Process Clause of the Fourteenth Amendment.
42
Even though the prerequisites of Pullman abstention are clearly met in this case, the Court rejects a routine application of that established doctrine in favor of a novel extension of the Younger-Huffman line of 'abstention' cases. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482. That is a departure from prior cases, which have not reached the Younger question when grounds for Pullman abstention were clear. See, e. g., Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587; Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152.
43
Both types of 'abstention,' of course, serve the common goal of judicial restraint as a means of avoiding undue federal interference with state goals and functions. But there is a significant difference in result between the two. Under Pullman abstention, the federal court may retain jurisdiction pending state-court interpretation of an ambiguous statute, while under Younger it may not. The Pullman approach thus has the adantage of not altogether foreclosing access to federal courts to vindicate federal rights, while still avoiding needless friction in federal-state relations.
44
Viewing this case as a paradigm for Pullman abstention, I would set aside the judgment of the District Court and direct it to retain jurisdiction pending a definitive construction of the statutes in question by the courts of New York.
1
There originally were three named plaintiffs. Subsequent to the bringing of this suit, five additional named plaintiffs were added. We conclude, infra, at 331-333, that not all of the named plaintiffs had the requisite standing to seek the relief sought.
2
The issuance of the subpoena is authorized by N.Y.Civ.Prac. Law §§ 5223 and 5224 (McKinney 1963). These subpoenas are issued
3
N.Y.Jud. Law § 757(1) (McKinney 1975).
4
§§ 770, 772, 773. The fine was payable to the Public Loan Co. in reduction of its judgment.
5
§ 756.
6
See n. 14, infra.
7
See N.Y.Civ.Prac. Law § 5701(a)(2) (McKinney 1963); Rudd v. Rudd, 45 A.D.2d 22, 356 N.Y.S.2d 136 (1974).
8
Since we find that the District Court erred in reaching the merits of the injunctive claim, we need not decide whether the District Court's action in granting partial summary judgment was proper, when neither party had moved for summary judgment and when the state defendants had not yet answered the complaint.
9
While several of the named appellees, upon payment of the fine, had satisfied the underlying default judgment, this is not true in all of the cases. Appellee Vail, for example, owed, pursuant to the default judgment, $534.36. His payment of the contempt fine of $250 plus costs, did not satisfy the full default judgment. As to him, and the other appellees similarly situated, since the underlying action on the debt, to which the contempt proceedings were ancillary, had not ended, it is conceivable that the prospect of further contempt orders in the underlying action could have given Vail the requisite constitutional standing to seek to enjoin the contempt processes as unconstitutional. But standing cannot be based on such speculative conjectures which are neither alleged nor proved. Since the complaint does not allege the likelihood, or even the possibility, of future contempt orders, none of the appellees, excepting Ward and Rabasco, have standing. O'Shea v. Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 677-678, 38 L.Ed.2d 674 (1974); Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973).
10
The District Court read Younger as applying 'to civil proceedings only when intervention would distrupt the very interests which would underlie a state's criminal laws.' Vail v. Quinlan, 406 F.Supp. 951, 958.
11
Neither Ex parte Young, nor the cases cited by it, expressly premised this conclusion on § 5 of the Judiciary Act of 1793, 1 Stat. 335, or its successor sections (now 28 U.S.C. § 2283). These cases rather, are 'an application of the reason underlying the Act,' Toucey v. New York Life Ins. Co., 314 U.S. 118, 135, 62 S.Ct. 139, 145, 86 L.Ed. 100 (1941), and reflect the applicability, wholly independent of a statutory codification, of the longstanding policies which inhere in the notions of comity and federalism, see Younger, 401 U.S., at 43-45, 91 S.Ct., at 750-751; 1 J. Kent, Commentaries on American Law *411-412.
12
Contempt in these cases, serves, of course, to vindicate and preserve the private interests of competing litigants, People ex rel. Munsell v. Court of Oyer and Terminer, 101 N.Y. 245, 247-249, 4 N.E. 259, 259-261 (1886), but its purpose is by no means spent upon purely private concerns. It stands in aid of the authority of the judicial system, so that its orders and judgments are not rendered nugatory, Ketchum v. Edwards, 153 N.Y. 534, 539, 47 N.E. 918, 920 (1897) ('The interest in maintaining respect for the action of courts, and of orderly jurisprudence, forbids that litigants should be permitted, under plea of hardship or injustice, real or pretended, to nullify or set at nought orders or decrees, however improvidently made, even if it may seem certain that the court acted in granting them under misapprehension or mistake'); cf. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 443, 31 S.Ct. 492, 498-499, 55 L.Ed. 797 (1911); King v. Barnes, 113 N.Y. 476, 21 N.E. 182 (1889).
13
As we did in Huffman, we save for another day the question of 'the applicability of Younger to all civil litigation,' 420 U.S., at 607, 95 S.Ct., at 1209.
14
The most propitious moment would have been at the hearing on the order to show cause. Even after the order of contempt had been issued, a motion to vacate pursuant to N.Y.Civ.Prac. Law § 5015 (McKinney Supp. 1976-1977) was available, and it would have been possible to seek a stay or a temporary restraining order on the fine and commitment, see N.Y.Civ.Prac. Law § 2201 (McKinney 1974); Rudd v. Rudd, 45 A.D.2d 22, 356 N.Y.S.2d 136 (1974). Should the state courts ultimately have sustained the validity of the state statutory system, appellees would have had final recourse, available as of right, to this Court, 28 U.S.C. § 1257(2).
15
It does not appear settled in New York whether persons faced with civil contempt will be assigned counsel if indigent, see Rudd v. Rudd, supra, but cf. In re Smiley, 36 N.Y.2d 433, 369 N.Y.S.2d 87, 330 N.E.2d 53 (1975) (no inherent power in courts to direct provision of counsel or to require the compensation of retained counsel in private suits; no 'risk of loss of liberty or grievous forfeiture'). In any case, the relevant datum is that the due process contentions concerning assigned counsel, as with the other contentions, could have been presented to the New York State courts by the same parties or their attorneys who, instead, chose to ignore the pending state-court proceedings by filing this suit in federal court.
16
Appellees Vail and McNair, apart from their request for declaratory and injunctive relief, also sought damages for alleged past violations of their constitutional rights stemming from the brief periods of incarceraton. Appellants, however, are no longer involved in this aspect of the lawsuit, having been dismissed by the District Court on grounds of judicial immunity. Appellees have not challenged the District Court's dismissal of the state-court justices from those counts, and none of the parties here have addressed the issue of the availability of damages to these appellees. The issue of damages is therefore not before us, and we intimate no opinion as to the applicability of Younger-Huffman principles to a § 1983 suit seeking only such relief in the District Court. Cf. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Huffman v. Pursue, Ltd., 420 U.S., at 607 n. 19, 609 n. 21, 95 S.Ct., at 1210 n. 19, 1211 n. 21.
1
'The precise reasons for this longstanding public policy against federal court interference with state court proceedings have never been specifically identified but the primary sources of the policy are plain. One is the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.' Younger v. Harris, 401 U.S., at 43-44, 91 S.Ct., at 750.
2
'Those who opposed the Act of 1871 (the forerunner of 42 U.S.C. § 1983) clearly recognized that the proponents were extending federal powr in an attempt to remedy the state courts' failure to secure federal rights. The debate was not about whether the predecessor of § 1983 extended to actions of state courts, but whether this innovation was necessary or desirable.
'This legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts.' Mitchum v. Foster, 407 U.S., at 241-242, 92 S.Ct., at 2161-2162.
In a footnote the Court quoted this comment by Congressman Coburn:
"The United States courts are further above mere local influence than the county courts; their judges can act with more independence, cannot be put under terror, as local judges can; their sympathies are not so nearly identified with those of the vicinage; the jurors are taken from the State, and not the neighborhood; they will be able to rise above prejudices or bad passions or terror more easily. . . .' Cong.Globe, 42d Cong., 1st Sess., 460 (1871).' Id., at 241 n. 31, 92 S.Ct., at 2161 n. 31.
3
The appellees argue that the procedures violate their due process rights because no proper notice of the fact that the noncooperating debtor is subject to incarceration for his actions is provided, because the procedures do not require a hearing with the debtor present prior to a finding of contempt and incarceration, and because the procedures do not provide for the right to counsel. If we assume that appellees are correct in their claim that they have a constitutional right to an actual hearing prior to incarceration, and that defects in the notice prevent the merits of that claim from being adjudicated in the state courts until after the incarceration has occurred, by hypothesis the state procedure cannot be adequate because appellees will have suffered the harm they seek to avoid before the state proceeding is concluded. Cf. Gerstein v. Pugh, 420 U.S. 103, 108 n. 9, 95 S.Ct. 854, 860 n. 9, 43 L.Ed.2d 54.
4
Perhaps another way to make the same point is to suggest that fidelity to the rationale of decide the merits of appellees' claims in order to decide whether to abstain.
*
I suspect that the purported disclaimer that '(a)s we did in Huffman, we save for another day the question of 'the applicability of Younger to all civil litigation . . .," ante, at 336 n. 13, is tongue in cheek, and that 'save' in today's disclaimer is a signal that merely the formal announcement is being postponed.
*
The record suggests that the courts of New York City may apply the statutes in question in quite a different manner.
| 89
|
430 U.S. 372
97 S.Ct. 1224
51 L.Ed.2d 411
C. L. SWAIN, Superintendent, Lorton Reformatory, Petitioner,v.Jasper C. PRESSLEY.
No. 75-811.
Argued Jan. 19, 1977.
Decided March 22, 1977.
Syllabus
Respondent, in custody pursuant to a sentence imposed by the Superior Court of the District of Columbia, applied in the United States District Court for the District of Columbia for a writ of habeas corpus seeking a review of the constitutionality of the proceedings that led to his conviction and sentence. The District Court dismissed the application on the basis of D.C.Code Ann. § 23-110(g) (1973), which provides that an application for a writ of habeas corpus on behalf of a prisoner authorized to apply for collateral relief by motion in the Superior Court pursuant to the statute 'shall not be entertained by the Superior Court or by any Federal or State court if it appears that the applicant has failed to make a motion for relief under this section or that the Superior Court has denied him relief . . ..' The United States Court of Appeals for the District of Columbia Circuit reversed. Doubting the constitutionality of the statutory curtailment of the District Court's jurisdiction to issue writs of habeas corpus, the court construed the statute as merely requiring the exhaustion of local remedies before a habeas corpus petition could be filed in the District Court, and concluded that respondent had exhausted those remedies. Held:
1. Section 23-110(g) prohibits the District Court from entertaining respondent's postconviction application for a writ of habeas corpus. The statute expressly covers the situation in which the applicant has exhausted his local remedies, and requires that the Federal District Court not entertain the habeas application in such a case. Moreover, the language of § 23-110(g) was deliberately patterned after 28 U.S.C. § 2255, which created a new postconviction remedy in sentencing district courts, and provided that a habeas corpus petition may not be entertained elsewhere; § 23-110(g) was plainly intended to achieve the parallel result in the District of Columbia by requiring collateral review of convictions from the Superior Court to be heard in that court. Pp. 377-378.
2. Section 23-110(g) does not suspend the privilege of the writ of habeas corpus in violation of Art. I, § 9, cl. 2, of the Constitution. Pp. 379-384.
(a) The final clause of § 23-110(g), which allows a Federal District Court to entertain a habeas corpus application if it 'appears that the remedy by motion is inadequate or ineffective to test the legality of (the applicant's) detention,' avoids any serious question about the statute's constitutionality. The substitution of a new collateral remedy that is neither inadequate nor eneffective does not constitute a suspension of the writ. Cf. United States v. Hayman, 342 U.S. 205, 223, 72 S.Ct. 263, 274, 96 L.Ed. 232. P. 381.
(b) The collateral relief available in the Superior Court is neither ineffective nor inadequate simply because the judges of that court lack the protections of Art. III judges (life tenure and salary protection), for they must be presumed competent to decide all constitutional and other issues that routinely arise in criminal cases. Pp. 381-383.
169 U.S.App.D.C. 319, 515 F.2d 1290, reversed.
Solicitor Gen. Robert H. Bork, Washington, D. C., for petitioner.
Mark W. Foster, Washington, D. C., for respondent.
Mr. Justice STEVENS delivered the opinion of the Court.
1
Respondent is in custody pursuant to a sentence imposed by the Superior Court of the District of Columbia.1 He has filed an application for a writ of habeas corpus in the United States District Court for the District of Columbia asking that court to review the constitutionality of the proceedings that led to his conviction and sentence. The question presented to us is whether § 23-110(g) of the District of Columbia Code2 prevents the District Court from entertaining the application.3
2
Congress enacted § 23-110(g) as part of the District of Columbia Court Reform and Criminal Procedure Act of 1970, 84 Stat. 608; that Act created a new local court system and transferred in its entirety the Federal District Court's responsibility for processing local litigation to the Superior Court of the District of Columbia.4 Section 23-110 of the Code established a procedure for collateral review of convictions in the Superior Court; the procedure is comparable to that authorized by 28 U.S.C. § 2255 for the United States district courts. Section 23-110(g) provides:
3
'An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section shall not be entertained by the Superior Court or by any Federal or State court if it appears that the applicant has failed to make a motion for relief under this section or that the Superior Court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.'5 (Emphasis added.)
4
On the authority of this provision, the District Court dismissed respondent's application.6 The Court of Appeals reversed. Largely because of its doubts concerning the constitutionality of a statutory curtailment of the District Court's jurisdiction to issue writs of habeas corpus, the Court of Appeals construed the statute as merely requiring exhaustion of local remedies before a habeas corpus petition could be filed in the District Court.7 The Court of Appeals, unlike the District Court, concluded that respondent had exhausted his loal remedies and thus remanded the case to the District Court for consideration of the merits. The Government's petition for certiorari which we granted, 424 U.S. 907, 96 S.Ct. 1101, 47 L.Ed.2d 311, did not question the Court of Appeals' conclusion regarding exhaustion.8
5
* There are two reasons why § 23-110(g) cannot fairly be read as merely requiring the exhaustion of local remedies before applying for a writ of habeas corpus in the District Court.
6
First, the statute expressly covers the situation in which the applicant has exhausted his local remedies, and requirs that the application be denied in such a case. The statute provides that the application 'shall not be entertained . . . by any Federal . . . court if it appears that . . . the Superior Court has denied (the applicant) relief.' This unequivocal statutory command to federal courts not to entertain an application for habeas corpus after the applicant has been denied collateral relief in the Superior Court, is squarely at odds with the Court of Appeals' view that the statute deals only witgh the procedure the applicant must follow before he may request relief in the District Court.
7
Second, the language of § 23-110(g) was deliberately patterned after 28 U.S.C. § 2255.9 That section, enacted in 1948, 62 Stat. 967, substituted a new collateral-review procedure for the pre-existing habeas corpus procedure. Prior to the adoption of § 2255, the district courts for the districts in which federal prisoners were confined entertained habeas corpus petitions; since 1948, collateral review has been available pursuant to § 2255 only in the districts in which the convictions were obtained. Thus, § 2255 created a new postconviction remedy in the sentencing court and provided that a habeas corpus petition may not be entertained elsewhere.10 See United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. Just as § 2255 was intended to substitute a different fourm and a different procedure for collateral review of federal convictions, § 23-110(g) was plainly intended to achieve a parallel result with respect to convictions in the District of Columbia.
8
Notwithstanding the desirability of adopting a construction of the statute which would avoid the constitutional issue raised by respondent, we are convinced that the language of § 23-110(g) is sufficiently plain to require us simply to read it as it is written.11
9
Purpose makes marked deviations from custom or leads inevitably to a holding of constitutional invalidity.'
II
10
Respondent argues12 that § 110(g), if read literally, violates Art. I, § 9, cl. 2, of the United States Constitution, which provides:
11
'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.'
12
His argument is made in two steps: (1) that the substitution of a remedy that is not 'exactly commensurate' with habeas corpus relief available in a district court is a suspension of the writ within the meaning of the Clause; and (2) that because the judges of the Superior Court of the District of Columbia do not enjoy the life tenure and salary protection which are guaranteed to district judges by Art. III, § 1, of the Constitution, the collateral-review procedure authorized by § 23-110(g) of the District of Columbia Code is not exactly commensurate with habeas corpus relief in the district courts.
13
The Government disputes both propositions. First, it contends that the constitutional provision merely prohibits suspension of the writ as it was being used when the Constitution was adopted; at that time the writ was not employed in collateral attacks on judgments entered by courts of competent jurisdiction.13 Second, it contends that the procedure authorized by § 23-110(g) is 'exactly commensurate' with the pre-existing habeas corpus remedy.
14
We are satisfied that the statute is valid, but we do not rest our decision on either of the broad propositions advanced by the Government. We are persuaded that the final clause in § 23-110(g) avoids any serious question about the constitutionality of the statute. That clause allows the District Court to entertain a habeas corpus application if it 'appears that the remedy by motion is inadequate or ineffective to test the legality of (the applicant's) detention.' Thus, the only constitutional question presented is whether the substitution of a new collateral remedy which is both adequate and effective should be regarded as a suspension of the Great Writ within the meaning of the Constitution. The obvious answer to this question is provided by the Court's opinion in United States v. Hayman:
15
'In a case where the Section 2255 procedure is shown to be 'inadequate or ineffective,' the Section provides that the habeas corpus remedy shall remain open to afford the necessary hearing. Under such circumstances, we do not reach constitutional questions.' 342 U.S., at 223, 72 S.Ct. at 274 (footnote omitted).
16
The Court implicitly held in Hayman, as we hold in this case, that the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus.
17
The question which remains is whether the remedy in the Superior Court of the District of Columbia created by § 23-110 is 'inadequate or ineffective.' We have already construed the remedy created by 28 U.S.C. § 2255 as the exact equivalent of the pre-existing habeas corpus remedy. Hill v. United States, 368 U.S. 424, 427, 82 S.Ct. 468, 470, 7 L.Ed.2d 417.14 Since the scope of the remedy provided by §§ 23-110 is the same as that provided by § 2255, it is also commensurate with habeas corpus in all respects save one the judges who administer it do not have the tenure and salary protection afforded by Art. III of the Constitution.15
18
We are fully cognizant of the critical importance of life tenure, particularly when judges are required to vindicate the constitutional rights of persons who have been found guilty of criminal offenses.16 The relationship between life tenure and judicial independence was vigorously explained by Mr. Justice Douglas in his dissenting opinion in Palmore v. United States 411 U.S. 389, 410-422, 93 S.Ct. 1670, 1682-88, 36 L.Ed.2d 342. But, as the Court held in that case, the Constitution does not require that all persons charged with federal crimes be tried in Art. III courts.17 That holding necessarily determines that the judges of the Superior Court of the District of Columbia must be presumed competent to decide all issues, including constitutional issues, that routinely arise in the trial of criminal cases. We must, therefore, presume that the collateral relief available in the Superior Court is neither ineffective nor inadequate simply because the judges of that court do not have life tenure.18
19
This conclusion is consistent with the settled view that elected judges of our state courts are fully competent to decide federral constitutional issues, and that their decisions must be respected by federal district judges in processing habeas corpus applications pursuant to 28 U.S.C. § 2254. Normally a state judge's resolution of a factual issue will be presumed to be correct unless the factfinding procedure employed by the state court was not adequate.19 It is equally permissible to presume that the judges of the Superior Court of the District of Columbia will correctly resolve constitutional issues unless it has been demonstrated, in accordance with the final clause of § 23-110(g), that the remedy afforded by that court is 'inadequate or ineffective.'20
20
Finding no reason to doubt the adequacy of the remedy provided by § 23-110, and having noted that its scope is commensurate with habeas corpus relief, we hold that § 23-110(g) has not suspended the writ of habeas corpus within the meaning of Art. I, § 9, cl. 2.
21
The judgment of the Court of Appeals is reversed.
22
It is so ordered.
23
Mr. Justice POWELL, concurring.
24
I concur in the opinion of the Court. In view, however, of the separate opinion filed today by THE CHIEF JUSTICE, I write merely to make clear that I do not read Part II of the Court's opinion as being incompatible with the views I have expressed previously with respect to the nature and scope of habeas corpus. Schneckloth v. Bustamonte, 412 U.S. 218, 250, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973) (Powell, J., concurring).
25
Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join, concurring in part and concurring in the judgment.
26
I join Part I of the Court's opinion and concur in the Court's judgment. However, I find it unnecessary to examine the adequacy of the remedy provided by § 23-110(g) for I do not consider that the statute in any way implicates the respondenths rights under the Suspension Clause, Art. I, § 9, cl. 2, of the Constitution.
27
The sweep of the Suspension Clause must be measured by reference to the intention of the Framers and their understanding of what the writ of habeas corpus meant at the time the Constitution was drafted. The scope of the writ during the 17th and 18th centuries has been described as follows:
28
'(O)nce a person had been convicted by a superior court of general jurisdiction, a court disposing of a habeas corpus petition could not go behind the conviction for any purpose other than to verify the formal jurisdiction of the committing court.' Oaks, Legal History in the High Court Habeas Corpus, 64 Mich.L.Rev. 451, 468 (1966).
29
Thus, at common law, the writ was available (1) to compel adherence to prescribed procedures in advance of trial; (2) to inquire into the cause of commitment not pursuant to judicial process; and (3) to inquire whether a committing court had proper jurisdiction. The writ in 1789 was not considered 'a means by which one court of general jurisdiction exercises post-conviction review over the judgment of another court of like authority.' Id., at 451.
30
Dicta to the contrary in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), have since been shown to be based on an incorrect view of the historic functions of habeas corpus. Schneckloth v. Bustamonte, 412 U.S. 218, 252-256, 93 S.Ct. 2041, 2060-2062, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). The fact is that in defining the scope of federal collateral remedies the Court has invariably engaged in statutory interpretation, construing what Congress has actually provided, rather than what it constitutionally must provide. See Developments in the Law Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1268 (1970). Judge Friendly has expressed this view clearly:
31
'It can scarcely be doubted that the writ protected by the suspension clause is the writ as known to the framers, not as Congress may have chosen to expand it or, more pertinently, as the Supreme Court has interpreted what Congress did.' Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 170 (1970) (footnote omitted).
32
Since I do not believe that the Suspension Clause requires Congress to provide a federal remedy for collateral review of a conviction entered by a court of competent jurisdiction, I see no issue of constitutional dimension raised by the statute in question. Under this view of the case, I need not consider the important constitutional question whether the Suspension Clause protects the jurisdiction of the Art. III courts. A doctrine that allowed transfer of the historic habeas jurisdiction to an Art. I court could raise separation-of-powers questions, since the traditional Great Writ was largely a remedy against executive detention. See P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 1513-1514 (2d ed. 1973). However, I agree with Part I of the Court's opinion, namely that § 23-110(g) was designed to preclude access to the District Court, not merely to assure exhaustion of local remedies and I would end the inquiry there. Congress has not provided access to the District Court and is under no compulsion to do so. I would therefore reverse the judgment on this basis.
1
He received concurrent sentences of 32-96 months and 20-60 months following his conviction of grand larceny and larceny from the District of Columbia Government, in violation of D.C.Code Ann. §§ 22-2201 and 22-2206 (1973). He is now on parole.
2
District of Columbia Code Ann. § 23-110 (1973) provides:
'(a) A prisoner in custody under sentence of the Superior Court claiming the right to be released upon the ground that (1) the sentence was imposed in violation of the Constitution of the United States or the laws of the District of Columbia, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, (4) the sentence is otherwise subject to collateral attack, may move the court to vacate, set aside, or correct the sentence.
'(b) A motion for such relief may be made at any time.
'(c) Unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting authority, grant a prompt hearing hereon, determine the issues, and make findings of fact and conclusions of law with respect thereto. If the court finds that (1) the judgment was rendered without jurisdiction, (2) the sentence imposed was not authorized by law or is otherwise open to collateral attack, (3) 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, resentence him, grant a new trial, or correct the sentence, as may appear appropriate.
'(d) A court may entertain and determine the motion without requiring the production of the prisoner at the hearing.
'(e) The court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.
'(f) An appeal may be taken to the District of Columbia Court of Appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.
'(g) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section shall not be entertained by the Superior Court or by any Federal or State court if it appears that the applicant has failed to make a motion for relief under this section or that the Superior Court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.'
3
In Pernell v. Southall Realty, 416 U.S. 363, 368 n. 4, 94 S.Ct. 1723, 1726, 40 L.Ed.2d 198, we noted that a question of this nature remained to be resolved.
4
See Palmore v. United States, 411 U.S. 389, 392-393, n. 2, 93 S.Ct. 1670, 1673, 36 L.Ed.2d 342, and Pernell v. Southall Realty, supra, 416 U.S., at 367-368, 94 S.Ct., at 1725-1726, for a description of the statute and its background. Prior to reorganization, the jurisdiction of the local District of Columbia courts was extremely circumscribed. In regard to criminal cases, for instance, the local courts had jurisdiction only over misdemeanors and petty offenses, and this jurisdiction was concurrent with that of the United States District Court. This left the United States District Court and the United States Court of Appeals for the District of Columbia Circuit with jurisdiction over numerous local criminal and civfil cases which were proving to be a great burden to those courts, diverting their energies from questions of national importance which require prompt resolution by the federal courts of the Nation's Capital. S.Rep. No. 91-405, p. 3 (1969).
The District of Columbia Court Reform and Criminal Procedure Act of 1970 was designed to alleviate these burdens by transferring general jurisdiction over local matters to the Superior Court of the District of Columbia and all appeals from that court to the District of Columbia Court of Appeals ('the Highest Court of the District'), thus creating a system of courts analogous to those found in the States. 'This transfer will bring the jurisdiction of the U. S. Courts in the District of Columbia in line with the jurisdiction exercised by the Federal courts in the several States, and will give the local courts jurisdiction over all purely local matters.' S.Rep.No. 91-405, supra, at 5.
5
The comparable section, 28 U.S.C. § 2255, reads in pertinent part as follows:
'An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be enteratined if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.'
6
In its original order of dismissal the District Court stated that it 'does not have jurisdiction over this matter, by virtue of 23 D.C.Code § 110(g).' Pet. for Cert. 66a. Later, in response to a sua sponte per curiam order of the Court of Appeals, quoted in part, 169 U.S.App.D.C. 319, 321, 515 F.2d 1290, 1292 (1975), the District Court concluded that respondent had not exhausted his remedies in the local court system. Appendix to Pet. for Cert. 67a-69a.
7
The opinion of the Court of Appeals in this case, 169 U.S.App.D.C. 319, 515 F.2d 1290 (1975), adopted the reasoning developed at length in its en banc decision in Palmore v. Superior Court of District of Columbia, 169 U.S.App.D.C. 323, 515 F.2d 1294 (1975). This Court granted the Government's petition for certiorari which consolidated for consideration both this case and Palmore, 424 U.S. 907, 96 S.Ct. 1101, 47 L.Ed.2d 311, and set the cases for oral argument. However, on the suggestion of the Solicitor General we vacated the judgment in Palmore and remanded that case to the Court of Appeals for further consideration in light of our recent decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067, 429 U.S. 915, 97 S.Ct. 305, 50 L.Ed.2d 280. Palmore had challenged his conviction on Fourth Amendment grounds.
8
After respondent's conviction was affirmed by the District of Columbia Court of Appeals, he filed a pro se motion for a new trial in the Superior Court alleging ineffective assistance of counsel. An order denying that motion was affirmed on appeal. While that appeal was pending, respondent filed a second motion in the Superior Court; although that court denied the motion on jurisdictional grounds, the Court of Appeals reached the merits and affirmed.
9
The House Report on the Act noted that § 23-110 was 'modeled on 28 U.S.C. § 2255 with only necessary technical changes.' H.R.Rep. No. 91-907, p. 117 (1970). The Senate Report has almost identical language. S.Rep. No. 91-405, p. 38 (1969). Moreover, the two provisions, § 2255 and § 23-110, contain almost identical language.
10
Section 2255 allows an exception for the case in which the remedy is 'inadequate or ineffective'; § 23-110(g) contains the same exception. See infra, at 381.
11
The Court of Appeals in Palmore, supra, at 328, 515 F.2d, at 1299, gave special regard to 'the principle of constitutional adjudication which makes it decisive in the choice of fair alternatives that one construction (which) may raise serious constitutional questions (be) avoided by another.' United States v. Rumely, 345 U.S. 41, 45, 73 S.Ct. 543, 545, 97 L.Ed. 770 (emphasis added). Along the same vein, Mr. Chief Justice Hughes has noted, 'if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.' Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (emphasis added). Both of these references to that 'cardinal principle' of statutory construction contain the caveat that resort to an alternative construction to avoid deciding a constitutional question is appropriate only when such a course is 'fairly possible' or when the statute provides a 'fair alternative' construction.
Here the statute could not be more plain. It prohibits 'any Federal . . . court' from entertaining a writ of habeas corpus if the applicant 'has failed to make a motion for relief' to the Superior Court or if 'the Superior Court has denied him relief . . ..' Thus, the language of United States v. Sullivan, 332 U.S. 689, 693, 68 S.Ct. 331, 334, 92 L.Ed. 297 is applicable:
'A restrictive interpretation should not be given a statute merely because Congress has chosen to depart from custom or because giving effect to the express language employed by Congress might require a court to face a constitutional question. And none of the foregoing cases, nor any other on which they relied, authorizes a court in interpreting a statute to depart from its clear meaning. When it is reasonably plain that Congress meant its Act to prohibit certain conduct, no one of the above references justifies a distortion of the congressional purpose, not even if the clearly correct
12
The Court below in Palmore, 169 U.S.App.D.C., at 333-335, 515 F.2d, at 1304-1306, also suggested the possibility that § 23-110(g) might be unconstitutional because it denied persons convicted in the superior Court equal protection of the laws. These persons must assert any collateral attack on their convictions before Art. I judges, whereas persons convicted under general federal law are allowed to attack their convictions before Art. III judges. But precisely the same classification is made with respect to the original trial and appeal process, which we have already held constitutional. Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342. It is certainly reasonable to make the same classification for collateralreview purposes as for purposes of trial and direct review.
A rational basis for the classification is found in the purpose behind the Court Reform Act. As one proponent of the Act noted, the Act 'establishes a complete court system (for the District of Columbia) . . .. It includes transfer of all, not some, 'local' jurisdiction to the new court,' the Superior Court for the District of Columbia, thus maximizing 'the potential of the courts' and minimizing 'overlapping jurisdiction.' Statement of Associate Deputy Attorney General Santarelli, Hearings on Court Reorganization, Criminal Law Procedures, Bail, and Public Defender Service, before Subcommittee No. 1 of the House Committee on the District of Columbia, 91st Cong., 1st Sess., 13 (1969, pt. 1). He saw the transfer of jurisdiction over 'habeas corpus' as part of the overall transfer of local jurisdiction. Id., at 14. For a discussion of the numerous and important purposes behind the enactment of § 2255, purposes much like those which motivated enactment of § 23-110, see United States v. Hayman, 342 U.S. 205, 210-219, 72 S.Ct. 263, 267-272, 96 L.Ed. 232.
13
THE CHIEF JUSTICE's concurring opinion reminds us that Congress has broadened the scope of the writ of habeas corpus beyond the limits that obtained during the 17th and 18th centuries; he cites us to the article in which Judge Friendly observed that '(w)hat Congress has given, Congress can partially take away.' Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 171 (1970) (emphasis added). That observation is more cautious than the conclusion that Congress may totally repeal all post-18th century developments in this area of the law. In any event, in view of the narrow basis for our decision, we have no occasion to address the broad issue discussed by the THE CHIEF JUSTICE.
14
We there stated: 'Suffice it to say that it conclusively appears from the historic context in which § 2255 was enacted that the legislation was intended simply to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined.' 368 U.S., at 427, 82 S.Ct., at 471 (emphasis added). See also United States v. Hayman, 342 U.S., at 219, 72 S.Ct., at 272.
15
In 1949, § 2255 was amended by inserting in the first paragraph of that provision 'Court established by Act of Congress' for 'Court of the United States.' 63 Stat. 105. This was done to make 'it clear that the section is applicable in the district courts in the Territories and possessions.' H.R.Rep. No. 352, 81st Cong., 1st Sess., 18 (1949); U.S.Code Cong. Serv. 1949, p. 1272. The courts of the Territories are created under Art. I, not Art. III. Palmore v. United States, 411 U.S., at 402-403, 93 S.Ct., at 1678-1679, and cases cited therein. Since that time, § 2255 motions made by persons convicted in the Territories have been heard by non-Art. III judges, and such a requirement has been deemed neither 'inadequate (n)or ineffective.' See United States ex rel. Leguillou v. Davis, 212 F.2d 681 (C.A.3 1954). This situation, however, is slightly different from the present situation, in that a § 2255 motion made to a territorial court is reviewable in the United States courts of appeals, which are Art. III courts.
16
We note that the respondent has not been deprived entirely of that protection. Under 28 U.S.C. § 1257(3), this Court possesses jurisdiction to review final judgments of the District of Columbia Court of Appeals. Thus, an individual tried in the Art. I courts of the District of Columbia has two opportunities to seek review before this Court, whose Members do enjoy life tenure and salary protection first, after affirmance of his conviction by the District of Columbia Court of Appeals, and second, after a judgment of that court resulting in the denial of relief under § 23-110.
17
Indeed, as was noted by the majority in Palmore, '(v)ery early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state judges who did not enjoy the protections prescribed for federal judges in Art. III.' 411 U.S., at 402, 93 S.Ct., at 1678.
18
The same analysis applies to salary protections. Moreover the salary level for judges of the Superior Court and judges of the District of Columbia Court of Appeals are determined at a rate equal to 90% of the salary levels accorded United States district judges and United States circuit judges, respectively. D.C.Code Ann. §§ 11-703(b), 11-904(b) (1973).
19
See 28 U.S.C. §§ 2254(d)(2) and (3).
20
In this case we have no occasion to consider what kind of showing would be required to demonstrate that the § 23-110 remedy is inadequate or ineffective in a particular case, or whether the character of the judge's tenure might be relevant to such a showing in a case presenting issues of extraordinary public concern.
| 01
|
430 U.S. 442
97 S.Ct. 1261
51 L.Ed.2d 464
ATLAS ROOFING COMPANY, INC., Petitioner,v.OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION et al. Frank IREY, Jr., Inc., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION et al.
Nos. 75-746 and 75-748.
Argued Nov. 29, 1976.
Decided March 23, 1977.
Syllabus
Upon finding that the existing state statutory remedies and common-law actions for negligence and wrongful death were inadequate to protect employees from death and injury due to unsafe working conditions, Congress enacted the Occupational Safety and Health Act of 1970 (OSHA), under which a new statutory duty was imposed on employers to avoid maintaining unsafe working conditions. Two new remedies were provided by permitting the Federal Government, proceeding before an administrative agency, (1) to obtain abatement orders requiring employers to correct unsafe working conditions, and (2) to impose civil penalties on any employer maintaining any unsafe working condition. If an employer contests a penalty or abatement order, an evidentiary hearing is then held before an administrative law judge of the Occupational Safety and Health Review Commission (Commission), who is empowered to affirm, modify, or vacate the proposed abatement order and penalty. The judge's decision becomes the Commission's final, appealable order, subject to review by the full Commission. If such review is granted, the Commission's subsequent order directing abatement and payment of a penalty becomes final unless the employer petitions for judicial review in the appropriate court of appeals, but the Commission's findings of fact, if supported by substantial evidence, are conclusive. If the employer fails to pay the assessed penalty, the Secretary of Labor may commence a collection action in a federal district court in which neither the fact of the violation nor the propriety of the penalty assessed may be retried. In the instant cases separate abatement orders were issued and penalties proposed against petitioners for violations of safety standards promulgated under OSHA. After hearings were held before Administrative Law Judges when petitioners each contested the orders and penalties, and the judges and later the Commission had affirmed the findings of violations and the abatement orders and had assessed penalties, petitioners sought judicial review in the Courts of Appeals, challenging both the Commission's factual findings that violations had occurred and the constitutionality of OSHA's enforcement procedures. Each Court of Appeals affirmed the Commission's orders over each petitioner's contention that the failure to afford the employer a jury trial on the question whether it had violated OSHA contravened the Seventh Amendment, which provides that '(i)n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.' Held: The Seventh Amendment does not prevent Congress from assigning to an administrative agency the task of adjudicating violations of OSHA. When Congress creates new statutory 'public rights,' it may assign their adjudication to an administrative agency with which a jury trial would be incompatible, without violating the Seventh Amendment's injunction that jury trial is to be 'preserved' in 'suits at common law.' That Amendment was never intended to establish the jury as the exclusive mechanism for factfinding in civil cases, but took the existing legal order as it found it, and hence there is little or no basis for now interpreting it as providing an impenetrable barrier to administrative factfinding under otherwise valid federal regulatory statutes. The Amendment did not render Congress powerless when it concluded that remedies available in courts of law were inadequate to cope with a problem within its power to regulate so to create such new public rights and remedies by statute and commit their enforcement, if it chose, to a tribunal other than a court of law (such as an administrative agency) in which facts are not found by juries. Pp. 1266-1272.
No. 75-746, 518 F.2d 990, and No. 75-748, 519 F.2d 1200, affirmed.
McNeill Stokes, Atlanta, Ga., for petitioners.
Robert H. Bork, Sol. Gen., Washington, D. C., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The issue in these cases is whether, consistent with the Seventh Amendment, Congress may create a new cause of action in the Government for civil penalties enforceable in an administrative agency where there is no jury trial.
2
* After extensive investigation, Congress concluded, in 1970, that work-related deaths and injuries had become a 'drastic' national problem.1 Finding the existing state statutory remedies as well as state common-law actions for negligence and wrongful death to be inadequate to protect the employee population from death and injury due to unsafe working conditions, Congress enacted the Occupational Safety and Health Act of 1970 (OSHA or Act), 84 Stat. 1590, 29 U.S.C. § 651 et seq. The Act created a new statutory duty to avoid maintaining unsafe or unhealthy working conditions, and empowers the Secretary of Labor to promulgate health and safety standards.2 Two new remedies were provided permitting the Federal Government, proceeding before an administrative agency, (1) to obtain abatement orders requiring employers to correct unsafe working conditions and (2) to impose civil penalties on any employer maintaining any unsafe working condition. Each remedy exists whether or not an employee is actually injured or killed as a result of the condition, and existing state statutory and common-law remedies for actual injury and death remain unaffected.
3
Under the Act, inspectors, representing the Secretary of Labor, are authorized to conduct reasonable safety and health inspections. 29 U.S.C. § 657(a). If a violation is discovered, the inspector, on behalf of the Secretary, issues a citation to the employer fixing a reasonable time for its abatement and, in his discretion, proposing a civil penalty. §§ 658, 659. Such proposed penalties may range from nothing for de minimis and nonserious violations, to not more than $1,000 for serious violations, to a maximum of $10,000 for willful or repeated violations, §§ 658(a), 659(a), 666(a)-(c) and (j).
4
If the employer wishes to contest the penalty or the abatement order, he may do so by notifying the Secretary of Labor within 15 days, in which event the abatement order is automatically stayed. §§ 659(a), (b), 666(d). An evidentiary hearing is then held before an administrative law judge of the Occupational Safety and Health Review Commission. The Commission consists of three members, appointed for six-year terms, each of whom is qualified 'by reason of training, education or experience' to adjudicate contested citations and assess penalties. §§ 651(b)(3), 659(c), 661, 666(i). At this hearing the burden is on the Secretary to establish the elements of the alleged violation and the propriety of his proposed abatement order and proposed penalty; and the judge is empowered to affirm, modify, or vacate any or all of these items, giving due consideration in his penalty assessment to 'the size of the business of the employer . . ., the gravity of the violation, the good faith of the employer, and the history of previous violations.' § 666(i). The judge's decision becomes the Commission's final and appealable order unless within 30 days a Commissioner directs that it be reviewed by the full Commission.3 §§ 659(c), 661(i); see 29 CFR §§ 2200.90, 2200.91 (1976).
5
If review is granted, the Commission's subsequent order directing abatement and the payment of any assessed penalty becomes final unless the employer timely petitions for judicial review in the appropriate court of appeals. 29 U.S.C. § 660(a). The Secretary similarly may seek review of Commission orders, § 660(b), but, in either case, '(t)he findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.' § 660(a). If the employer fails to pay the assessed penalty, the Secretary may commence a collection action in a federal district court in which neither the fact of the violation nor the propriety of the penalty assessed may be retried. § 666(k). Thus, the penalty may be collected without the employer's ever being entitled to a jury determination of the facts constituting the violation.
II
6
Petitioners were separately cited by the Secretary and ordered immediately to abate pertinent hazards after inspections of their respective worksites conducted in 1972 revealed conditions that assertedly violated a mandatory occupational safety standard promulgated by the Secretary under § 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2). In each case an employee's death had resulted. Petitioner Irey was cited for a willful violation of 29 CFR § 1926.652(b) and Table P-1 (1976) a safety standard promulgated by the Secretary under the Act requiring the sides of trenches in 'unstable or soft material' to be 'shored, . . . sloped, or otherwise supported by means of sufficient strength to protect the employees working within them.' The Secretary proposed a penalty of $7,500 for this violation and ordered the hazard abated immediately.
7
Petitioner Atlas was cited for a serious violation of 29 CFR(b)(1) and (f)(5) (ii) (1976), which require that roof opening covers be 'so installed as to prevent accidental displacement.' The Secretary proposed a penalty of $600 for this violation and ordered the hazard abated immediately.
8
Petitioners timely contested these citations and were afforded hearings before Administrative Law Judges of the Commission. The judges, and later the Commission, affirmed the findings of violations and accompanying abatement requirements and assessed petitioner Irey a reduced civil penalty of $5,000 and petitioner Atlas the civil penalty of $600 which the Secretary had proposed. Petitioners respectively thereupon sought judicial review in the Courts of Appeals for the Third and Fifth Circuits, challenging both the Commission's factual findings that violations had occurred and the constitutionality of the Act's enforcement procedures.
9
A panel of the Court of Appeals for the Third Circuit affirmed the Commission's orders in the Irey case over petitioner's and a dissenter's contention that the failure to afford the employer a jury trial on the question whether he had violated OSHA was in violation of the Seventh Amendment to the United States Constitution which provides for jury trial in most civil suits at common law. 519 F.2d 1200. On rehearing en banc, the Court of Appeals for the Third Circuit, over four dissents, adhered to the original panel's decision. Id., at 1215. It concluded that this Court's rulings to date 'leave no doubt that the Seventh Amendment is not applicable, at least in the context of a case such as this one, and that Congress is free to provide an administrative enforcement scheme without the intervention of a jury at any stage.' Id., at 1218.
10
The Court of Appeals for the Fifth Circuit also affirmed the Commission's order in the Atlas case over a similar claim that the enforcement scheme violated the Seventh Amendment. 518 F.2d 990. It stated:
11
'Where adjudicative responsibility rests only in the administering agency, 'jury trials would be incompatible with the whole concept of administrative adjudication and would substantially interfere with the (agency's) role in the statutory scheme."4 Id., at 1011.
12
We granted the petitions for writs of certiorari limited to the important question whether the Seventh Amendment prevents Congress from assigning to an administrative agency, under these circumstances the task of adjudicating violations of OSHA.5 424 U.S. 964, 96 S.Ct. 1458, 47 L.Ed.2d 731.
III
13
The Seventh Amendment provides that '(i)n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . ..' The phrase 'Suits at common law' has been construed to refer to cases tried prior to the adoption of the Seventh Amendment in courts of law in which jury trial was customary as distinguished from courts of equity or admiralty in which jury trial was not. Parsons v. Bedford, 3 Pet. 433, 7 L.Ed. 732 (1830). Petitioners claim that a suit in a federal court by the Government for civil penalties for violation of a statute is a suit for a money judgment which is classically a suit at common law, Whitehead v. Shattuck, 138 U.S. 146, 151, 11 S.Ct. 276, 34 L.Ed. 873 (1891); and that the defendant therefore has a Seventh Amendment right to a jury determination of all issues of fact in such a case, see Hepner v. United States, 213 U.S. 103, 115, 29 S.Ct. 474, 479, 53 L.Ed. 720 (1909) (dictum); United States v. Regan, 232 U.S. 37, 47, 34 S.Ct. 213, 216, 53 L.Ed. 494 (1914) (dictum).6 Petitioners then claim that to permit Congress to assign the function of adjudicating the Government's rights to civil penalties for violation of the statute to a different forum an administrative agency in which no jury is available would be to permit Congress to deprive a defendant of his Seventh Amendment jury right. We disagree. At least in cases in which 'public rights' are being litigated e. g., cases in which the Government sues in its sovereign capacity to enforce public rights created by statutes within the power of Congress to enact the Seventh Amendment does not prohibit Congress from assigning the factfinding function and initial adjudication to an administrative forum with which the jury would be incompatible.7
14
Congress has often created new statutory obligations, provided for civil penalties for their violation, and committed exclusively to an administrative agency the function of deciding whether a violation has in fact occurred. These statutory schemes have been sustained by this Court, albeit often without express reference to the Seventh Amendment. Thus taxes may constitutionally be assessed and collected together with penalties, with the relevant facts in some instances being adjudicated only by an administrative agency. Phillips v. Commissioner, 283 U.S. 589, 599-600, 51 S.Ct. 608, 612, 75 L.Ed. 1289 (1931); Murray's Lessee v. Hoboken Land Co., 18 How. 272, 284, 15 L.Ed. 372 (1856).8 Neither of these cases expressly discussed the question whether the taxation scheme violated the Seventh Amendment. However, in Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938), the Court said, in rejecting a claim under the Sixth Amendment that the assessment and adjudication of tax penalties could not be made without a jury, that 'the determination of the facts upon which liability is based may be by an administrative agency instead of a jury,' id., at 402, 58 S.Ct. at 635. Similarly, Congress has entrusted to an administrative agency the task or adjudicating violations of the customs and immigration laws and assessing penalties based thereon. Lloyd Sabaudo Societa v. Elting, 287 U.S. 329, 335, 53 S.Ct. 167, 170, 77 L.Ed. 341 (1932) ('(D)ue process of law does not require that the courts, rather than administrative officers, be charged . . . with determining the facts upon which the imposition of (fines) depends'); Oceanic Nav. Co. v. Stranahan, 214 U.S. 320, 29 S.Ct. 671, 53 L.Ed. 1013 (1909).9 See also Ex parte Bakelite Corp., 279 U.S. 438, 451, 458, 49 S.Ct. 411, 416, 73 L.Ed. 789 (1929).
15
In Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865 (1921), the Court sustained Congress' power to pass a statute, applicable to the District of Columbia, temporarily suspending landlords' legal remedy of ejectment and relegating them to an administrative factfinding forum charged with determining fair rents at which tenants could hold over despite the expiration of their leases. In that case the Court squarely rejected a challenge to the statute based on the Seventh Amendment, stating:
16
'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. 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. (Emphasis added.)
17
In Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932), apparently referring to the above-cited line of authority, the Court stated:
18
'(T)he distinction is at once apparent between cases of private right and those which arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments. . . . (T)he Congress, in exercising the powers confided to it may establish 'legislative' courts . . . to serve as special tribunals 'to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it.' But 'the mode of determining matters of this class is completely within congressional control. Congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals.' . . . Familiar illustrations of administrative of such matters are found in connection with the exercise of the congressional power as to interstate and foreign commerce, taxation, immigration, the public lands, public health, the facilities of the post office, pensions, and payments to veterans.' Id., at 50-51, 52 S.Ct. at 292. (Emphasis added.) In NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), the Court squarely addressed the Seventh Amendment issue involved when Congress commits the factfinding function under a new statute to an administrative tribunal. Under the National Labor Relations Act, Congress had committed to the National Labor Relations Board, in a proceeding brought by its litigating arm, the task of deciding whether an unfair labor practice had been committed and of ordering backpay where appropriate. The Court stated:
19
'The instant case is not a suit at common law or in the nature of such a suit. The proceeding is one unknown to the common law. It is a statutory proceeding. Reinstatement of the employee and payment for time lost are requirements (administratively) imposed for violation of the statute and are remedies appropriate to its enforcement. The contention under the Seventh Amendment is without merit.' Id., at 48-49, 57 S.Ct., at 629. (Emphasis added.)10
20
This passage from Jones & Laughlin has recently been explained in Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), in which the Court held the Seventh Amendment applicable to private damages suits in federal courts brought under the housing discrimination provisions of the Civil Rights Act of 1968. The Court rejected the argument that Jones & Laughlin held the Seventh Amendment inapplicable to any action based on a statutorily created right even if the action was brought before a tribunal which customarily utilizes a jury as its factfinding arm. Instead, we concluded that Jones & Laughlin upheld
21
'congressional power to entrust enforcement of statutory rights to an administrative process or specialized court of equity11 free from the strictures of the Seventh Amendment.' 415 U.S., at 194-195, 94 S.Ct., at 1009. (Emphasis added.)
22
Finally, in Pernell v. Southall Realty, 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974),12 in discussing Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865 (1921), and Jones & Laughlin, we stated:
23
'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. . . . We may assume that the Seventh Amendment would not be a bar to a congressional effort to entrust landlordtenant 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.' 416 U.S., at 383, 94 S.Ct., at 1733. (Emphasis added.)
24
In sum, the cases discussed above stand clearly for the proposition that when Congress creates new statutory 'public rights,' it may assign their adjudication to an administrative agency with which a jury trial would be incompatible, without violating the Seventh Amendment's injunction that jury trial is to be 'preserved' in 'suits at common law.'13 Congress is not required by the Seventh Amendment to choke the already crowded federal courts with new types of litigation or prevented from committing some new types of litigation to administrative agencies with special competence in the relevant field. This is the case even if the Seventh Amendment would have required a jury where the adjudication of those rights is assigned instead to a federal court of law instead of an administrative agency. Petitioners would nevertheless have us disregard the interpretation of Jones & Laughlin which we recently espoused in Curtis v. Loether and Pernell v. Southall Realty, reading it instead as a holding solely that the entire proceeding before the NLRB was really equitable in nature; and they would have us entirely disregard Block v. Hirsh, supra. They would have us disregard the dictum in Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932), that the adjudication of congressionally created public rights may be assigned to administrative agencies, as well as the similar holdings in Lloyd Sabaudo Societa v. Elting, 287 U.S. 329, 53 S.Ct. 167, 77 L.Ed. 341 (1932); Oceanic Nav. Co. v. Stranahan, 214 U.S. 320, 29 S.Ct. 671, 53 L.Ed. 1013 (1909); Murray's Lessee v. Hoboken Land Co., 18 How. 272, 15 L.Ed. 372 (1856); Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 and Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938).
25
None of the grounds tendered for so reinterpreting the Seventh Amendment is convincing. It is suggested that in some of the cases, Elting, Oceanic, Murray's Lessee, Phillips, and Helvering, the Seventh Amendment was not expressly put in issue. But these cases are clear enough that in the context involved, there was no requirement that the courts be involved at all in the factfinding process in the first instance. It is difficult to believe that these holdings or dicta did not subsume the proposition that a jury trial was not required. Furthermore, there are the remaining cases where the Court expressly held or observed that the Seventh Amendment did not bar administrative factfindings. Jones & Laughlin, Block, Pernell, and Curtis.
26
Second, it is argued with some force that cases such as Murray's Lessee, Elting, Oceanic, Phillips, and Helvering all deal with the exercise of sovereign powers that are inherently in the exclusive domain of the Federal Government and critical to its very existence the power over immigration, the importation of goods, and taxation and that the theory of those cases is inapplicable where the Government exercises other powers that petitioners apparently regard as less fundamental, less exclusive, and less vital to the existence of the Nation, such as the power to regulate commerce among the several States, the latter being the power Congress sought to exercise in enacting the statute at issue here. The difficulty with this argument is that the Court in these cases, and in others, did not appear to confine its holdings in this manner. In Murray's Lessee the Court referred to 'matters, involving public rights (that) congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.' 18 How., at 284. In Oceanic, which sustained the administrative imposition of a fine for the wrongful importation of aliens, the Court said that its ruling was in accordance with 'settled judicial construction' that 'not only as to tariff but as to internal revenue, taxation and other subjects' Congress could 'impose appropriate obligations, and sanction their enforcement by reasonable money penalties, giving to executive officers the power to enforce such penalties without the necessity of invoking the judicial power.' 214 U.S., at 339, 29 S.Ct., at 676. (Emphasis added.) Crowell spoke broadly of the distinction between cases of private right and those which arise between the Government and persons subject to its authority 'in connection with the performance of the constitutional functions of the executive or legislative departments,' see supra, at 452, and gave 'familiar illustrations' of the permissible use of administrative agencies in connection with the exercise of such congressional powers as 'interstate and foreign commerce.' 285 U.S., at 51, 52 S.Ct., at 292. Helvering v. Mitchell, supra, at 402-403, 58 S.Ct., at 635, relying on Oceanic and similar cases, stated simply that 'the determination of the facts upon which liability is based may be by an administrative agency instead of a jury.' It is also apparent that Jones & Laughlin, Pernell, and Curtis are not amenable to the limitations suggested by petitioners.
27
Third is the assertion that the right to jury trial was never intended to depend on the identity of the forum to which Congress has chosen to submit a dispute; otherwise, it is said, Congress could utterly destroy the right to a jury trial by always providing for administrative rather than judicial resolution of the vast range of cases that now arise in the courts. The argument is well put, but it overstates the holdings of our prior cases and is in any event unpersuasive. Our prior cases support administrative factfinding in only those situations involving 'public rights,' e. g., where the Government is involved in its sovereign capacity under an otherwise valid statute creating enforceable public rights. Wholly private tort, contract, and property cases, as well as a vast range of other cases as well are not at all implicated.
28
More the the point, it is apparent from the history of jury trial in civil matters that factfinding, which is the essential function of the jury in civil cases, Colgrove v. Battin, 413 U.S. 149, 157, 93 S.Ct. 2448, 2452, 37 L.Ed.2d 522 (1973), was never the exclusive province of the jury under either the English or American legal systems at the time of the adoption of the Seventh Amendment; and the question whether a fact would be found by a jury turned to a considerable degree on the nature of the forum in which a litigant found himself. Critical factfinding was performed without juries in suits in equity, and there were no juries in admiralty, Parsons v. Bedford, 3 Pet. 433, 7 L. Ed. 732 (1830); nor were there juries in the military justice system. The jury was the factfinding mode in most suits in the common-law courts, but it was not exclusively so: Condemnation was a suit at commonlaw but constitutionally could be tried without a jury, Kohl v. United States, 91 U.S. 367, 375-376, 23 L.Ed. 449 (1876); Bauman v. Ross, 167 U.S. 548, 593, 42 L.Ed. 270 (1897); United States v. Reynolds, 397 U.S. 14, 18, 90 S.Ct. 803, 806, 25 L.Ed.2d 12 (1970). '(M)any civil as well as criminal proceedings at common law were without a jury.' Kohl v. United States, supra, at 376, 23 L.Ed. 449. The question whether a particular case was to be tried in a court of equity without a jury or a court of law with a jury did not depend on whether the suit involved factfinding or on the nature of the facts to be found. Factfinding could be a critical matter either at law or in equity. Rather, as a general rule, the decision turned on whether courts of law supplied a cause of action and an adequate remedy to the litigant.14 If it did, then the case would be tried in a court of law before a jury. Otherwise the case would be tried to a court of equity sitting without a jury. Thus, suits for damages for breach of contract, for example, were suits at common law with the issues of the making of the contract and its breach to be decided by a jury; but specific performance was a remedy unavailable in a court of law and where such relief was sought the case would be tried in a court of equity with the facts as to making and breach to be ascertained by the court.
29
The Seventh Amendment was declaratory of the existing law, for it required only that jury trial in suits at common law was to be 'preserved.' It thus did not purport to require a jury trial where none was required before. Moreover, it did not seek to change the factfinding mode in equity or admiralty or to freeze equity jurisdiction as it existed in 1789, preventing it from developing new remedies where those available in courts of law were inadequate. Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970), is instructive in this respect. We there held that a jury trial is required in stockholder derivative suits where, if the corporation itself had sued, a jury trial would have been available to the corporation. It is apparent, however, that prior to the 1938 Federal Rules of Civil Procedure merging the law and equity functions of the federal courts, the very suit involved in Bernhard would have been in a court of equity sitting without a jury, not because the underlying issue was any different at all from the issue the corporation would have presented had it sued, but because the stockholder plaintiff who was denied standing in a court of law to sue on the issue was enabled in proper circumstances, starting in the early part of the 19th century, to sue in equity on behalf of the company.
30
The point is that the Seventh Amendment was never intended to establish the jury as the exclusive mechanism for factfinding in civil cases. It took the existing legal order as it found it, and there is little or no basis for concluding that the Amendment should now be interpreted to provide an impenetrable barrier to administrative factfinding under otherwise valid federal regulatory statutes. We cannot conclude that the Amendment rendered Congress powerless when it concluded that remedies available in courts of law were inadequate to cope with a problem within Congress' power to regulate to create new public rights and remedies by statute and commit their enforcement, if it chose, to a tribunal other than a court of law such as an administrative agency in which facts are not found by juries. Indeed, as the Oceanic opinion said, the 'settled judicial construction' was to the contrary 'from the beginning.' 214 U.S., at 339, 29 S.Ct. at 676. That case indicated, as had Hepner v. United States, 213 U.S. 103, 29 S.Ct. 474, 53 L.Ed. 720 (1909), that the Government could commit the enforcement of statutes and the imposition and collection of fines to the judiciary, in which event jury trial would be required, see also United States v. Regan, 232 U.S. 37, 34 S.Ct. 213, 58 L.Ed. 494 (1914), but that the United States could also validly opt for administrative enforcement, without judicial trials. See also Helvering v. Mitchell, 303 U.S., at 402-403, 58 S.Ct., at 634-635, and Crowell v. Benson, 285 U.S., at 50-51, 52 S.Ct., at 292.15
31
Thus, history and our cases support the proposition that the right to a jury trial turns not solely on the nature of the issue to be resolved but also on the forum in which it is to be resolved.16 Congress found the common-law and other existing remedies for work injuries resulting from unsafe working conditions to be inadequate to protect the Nation's working men and women. It created a new cause of action, and remedies therefor, unknown to the common law, and placed their enforcement in a tribunal supplying speedy and expert resolutions of the issues involved. The Seventh Amendment is no bar to the creation of new rights or to their enforcement outside the regular courts of law.
32
The judgments below are affirmed.
33
It is so ordered.
34
Mr. Justice BLACKMUN took no part in the decision of these cases.
1
The Senate Report stated:
'The problem of assuring safe and healthful workplaces for our working men and women ranks in importance with any that engages the national attention today. . . . 14,500 persons are killed annually as a result of industrial accidents; accordingly, during the past four years more Americans have been killed where they work than in the Vietnam war. By the lowest count, 2.2 million persons are disabled on the job each year, resulting in the loss of 250 million man days of work many times more than are lost through strikes.
'In addition to the individual human tragedies involved, the economic impact of industrial deaths and disability is staggering. Over $1.5 billion is wasted in lost wages, and the annual loss to the Gross National Product is estimated to be over $8 billion. Vast resources that could be available for productive use are siphoned off to pay workmen's compensation benefits and medical expenses.
'This 'grim current scene' . . . represents a worsening trend, for the fact is that the number of disabling injuries per million man hours worked is today 20% higher than in 1958.' S.Rep.No.91-1282, p. 2 (1970), Leg.Hist. 142, U.S.Code Cong. & Admin.News 1970, pp. 5177, 5178.
See also H.R.Rep.No.91-1291, pp. 14-15 (1970); Leg.Hist. 844-845 ('The issue of the health and safety of the American working man and woman is the most crucial one in the whole environmental question . . . the worst problem confronting American workers').
House and Senate debates are reprinted, along with the House, Senate, and Conference Reports, in a one-volume Committee Print entitled Legislative History of the Occupational Safety and Health Act of 1970, Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess. (June 1971) (cited supra and hereafter as Leg.Hist.).
2
The statute provides in § 5(a), 29 U.S.C. § 654(a), that each employer:
'(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
'(2) shall comply with occupational safety and health standards promulgated under this Act.'
3
Petitioners make no challenge to the absence of mandatory review by the Commission of the administrative law judge's findings of fact.
4
The other Courts of Appeals which have passed on this issue have uniformly (and without a dissent) agreed with these results. Mohawk Excavating, Inc. v. Occupational Safety & Health Rev. Comm'n, 549 F.2d 859 (CA2 1977); Beall Constr. Co. v. Occupational Safety & Health Rev. Comm'n, 507 F.2d 1041 (CA8 1974); Brennan v. Winters Battery Mfg. Co., 531 F.2d 317 (CA6 1975); Clarkson Constr. Co. v. Occupational Safety & Health Rev. Comm'n, 531 F.2d 451 (CA10 1976). See also Underhill Constr. Corp. v. Secretary of Labor, 526 F.2d 53, 57 n. 10 (CA2 1975).
5
Each petitioner also argued below that the enforcement scheme violates the constitutional requirements that juries decide fact issues in criminal cases arguing that the fines involved are 'penal' in nature. Each petitioner asked this Court in its petition for a writ of certiorari to review the unfavorable rulings of the courts below on this issue.
6
In light of our disposition of these cases we decline the respondents' invitation to decide whether the dictum in these cases correctly divines the intent of the Seventh Amendment or whether, as the respondents argue, the Seventh Amendment has no application to Government litigation and leaves solely to the Sixth Amendment the function of interposing a jury between the Federal Government and an individual from whom it wishes to exact a fine. See Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 1319 (1975).
7
These cases do not involve purely 'private rights.' In cases which do involve only 'private rights,' this Court has accepted factfinding by an administrative agency, without intervention by a jury, only as an adjunct to an Art. III court, analogizing the agency to a jury or a special master and permitting it in admiralty cases to perform the function of the special master. Crowell v. Benson, 285 U.S. 22, 51-65, 52 S.Ct. 285, 292-298, 76 L.Ed. 598 (1932). The Court there said: 'On the common-law side of the federal courts, the aid of juries is not only deemed appropriate but is required by the Constitution itself.' Id., at 51, 52 S.Ct., at 292.
8
In Murray's Lessee, the Court stated:
'(T)here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.' 18 How., at 284. (Emphasis added.)
9
In Oceanic, the Court stated:
'In accord with this settled judicial construction the legislation of Congress from the beginning, not only as to tariff, but as to internal revenue, taxation, and other subjects, has proceeded on the conception that it was within the competency of Congress, when legislating as to matters exclusively within its control, to impose appropriate obligations, and sanction their enforcement by reasonable money penalties, giving to executive officers the power to enforce such penalties without the necessity of invoking the judicial power.' 214 U.S., at 339, 29 S.Ct., at 676. (Emphasis added.)
10
The Court also rejected the Seventh Amendment claim in Jones & Laughlin on the separate ground that that Amendment is inapplicable where 'recovery of money damages is an incident to (nonlegal) relief even though damages might have been recovered in an action at law,' 301 U.S., at 48-49, 57 S.Ct. at 629, since in such cases courts of equity would historically have granted monetary relief. In Jones & Laughlin, the NLRB ordered reinstatement of a dismissed employee, an order analogous to injunctive relief historically obtainable only in a court of equity, and consequently this alternative ground was an adequate one to decide Jones & Laughlin. However, this alternative ground would have been insufficient to decide the more general question of the NLRB's power to order backpay where, for one reason or another, no such equitable order was sought. See Radio Officers v. NLRB, 347 U.S. 17, 54, 74 S.Ct. 323, 343, 98 L.Ed. 455 (1954); NLRB v. National Garment Co., 166 F.2d 233 (CA8 1948); NLRB v. Brookside Industries, Inc., 308 F.2d 224 (CA4 1962); Bon Hennings Logging Co. v. NLRB, 308 F.2d 548 (CA9 1962); NLRB v. West Coast Casket Co., Inc., 205 F.2d 902 (CA9 1953); Reliance Mfg. Co. v. NLRB, 125 F.2d 311 (CA7 1941); NLRB v. Carpenters, 238 F.2d 832 (CA5 1956); Indianapolis Power & Light Co. v. NLRB, 122 F.2d 757 (CA7 1941).
11
The Court had reference to Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966), in which this Court sustained the power of a bankruptcy court, exercising summary jurisdiction without a jury, to adjudicate the otherwise legal issues of voidable preferences. The Court did so on the ground that a bankruptcy court, exercising its summary jurisdiction, was a specialized court of equity and constituted a forum before which a jury would be out of place and would go far to dismantle the statutory scheme.
12
The holding in Pernell was that the Seventh Amendment applies to resolution of disputes of a 'legal' nature those regarding right to possession of real property when the resolution is entrusted to a forum which customarily employs a jury.
13
We note that the decision of the administrative tribunal in these cases on the law is subject to review in the federal courts of appeals, and on the facts is subject to review by such courts of appeals under a substantial-evidence test. Thus, these cases do not present the question whether Congress may commit the adjudication of public rights and the imposition of fines for their violation to an administrative agency without any sort of intervention by a court at any stage of the proceedings.
14
The Judiciary Act of 1789, 1 Stat. 82, which was in this respect declaratory of existing law, provided:
'Sec. 16. And be it further enacted, That suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate and complete remedy may be had at law.'
15
Finally, it should be noted that, if the fines involved in these cases were made criminal fines instead of civil fines, the Seventh Amendment would be inapplicable by its terms. The Sixth Amendment would then govern the employer's right to a jury and under our prior cases no jury trial would be required. Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975). It would be odd to hold that Congress could avoid the jury-trial requirement by labeling the civil penalties criminal fines but not by assigning their adjudication to an administrative agency.
16
Petitioners claim that permitting Congress to control the jury-right question by picking the forum is to delegate to it, rather than this Court, the final power to decide Seventh Amendment issues. The claim is incorrect. The Seventh Amendment prevents Congress from depriving a litigant of a jury trial in a 'legal' action before a tribunal customarily utilizing a jury as its factfinding arm, Pernell v. Southall Realty, 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974), and this Court has the final decision on the question whether a jury is required.
| 01
|
430 U.S. 387
97 S.Ct. 1232
51 L.Ed.2d 424
Lou V. BREWER, Warden, Petitioner,v.Robert Anthony WILLIAMS, aka Anthony Erthel Williams.
No. 74-1263.
Argued Oct. 4, 1976.
Decided March 23, 1977.
Rehearing Denied May 16, 1977.
See 431 U.S. 925, 97 S.Ct. 2200.
Syllabus
Respondent was arrested, arraigned, and committed to jail in Davenport, Iowa, for abducting a 10-year-old girl in Des Moines, Iowa. Both his Des Moines lawyer and his lawyer at the Davenport arraignment advised respondent not to make any statements until after consulting with the Des Moines lawyer upon being returned to Des Moines, and the police officers who were to accompany respondent on the automobile drive back to Des Moines agreed not to question him during the trip. During the trip respondent expressed no willingness to be interrogated in the absence of an attorney but instead stated several times that he would tell the whole story after seeing his Des Moines lawyer. However, one of the police officers, who knew that respondent was a former mental patient and was deeply religious, sought to obtain incriminating remarks from respondent by stating to him during the drive that he felt they should stop and locate the girl's body because her parents were entitled to a Christian burial for the girl, who was taken away from them on Christmas Eve. Respondent eventually made several incriminating statements in the course of the trip and finally directed the police to the girl's body. Respondent was tried and convicted of murder, over his objections to the admission of evidence relating to or resulting from any statements he made during the automobile ride, and the Iowa Supreme Court affirmed, holding, as did the trial court, that respondent had waived his constitutional right to the assistance of counsel. Respondent then petitioned for habeas corpus in Federal District Court, which held that the evidence in question had been wrongly admitted at respondents trial on the ground, inter alia, that he had been denied his constitutional right to the assistance of counsel, and further ruled that he had not waived that right. The Court of Appeals affirmed. Petitioner warden claims that the District Court in making its findings of fact disregarded 28 U.S.C. § 2254(d), which provides that, subject to certain exceptions, federal habeas corpus courts shall accept as correct the factual determinations made by state courts. Held:
1. The District Court correctly applied 28 U.S.C. § 2254(d) in its resolution of the disputed evidentiary facts, where it appears that it made no findings of fact in conflict with those of the Iowa courts, and that its additional findings of fact based upon its examination of the state-court record were conscientiously and carefully explained and were approved by the Court of Appeals as being supported by the record. Pp. 395-397.
2. Respondent was deprived of his constitutional right to assistance of counsel. Pp. 397-401.
(a) The right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to a lawyer's help at or after the time that judicial proceedings have been initiated against him, and here there is no doubt that judicial proceedings had been initiated against respondent before the automobile trip started, since a warrant had been issued for his arrest, he had been arraigned, and had been committed to jail. Pp. 398-399.
(b) An individual against whom adversary proceedings have commenced has a right to legal representation when the government interrogates him, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and since here the police officer's 'Christian burial speech' was tantamount to interrogation respondent was entitled to the assistance of counsel at the time he made the incriminating statements. Pp. 399-401.
3. The circumstances of record provide, when viewed in light of respondent's assertions of his right to counsel, no reasonable basis for finding that respondent waived his right to the assistance of counsel, the record falling far short of sustaining the State's burden to prove "an intentional relinquishment or abandonment of a known right or privilege," Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461. Pp. 401-406.
8 Cir., 509 F.2d 227, affirmed.
Richard N. Winders, Asst. Atty. Gen. and Richard C. Turner, Atty. Gen., Des Moines, Iowa, for petitioner.
Robert D. Bartels, Iowa City, Iowa, for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
An Iowa trial jury found the respondent, Robert Williams, guilty of murder. The judgment of conviction was affirmed in the Iowa Supreme Court by a closely divided vote. In a subsequent habeas corpus proceeding a Federal District
2
[Amicus Curiae Information from page 389 intentionally omitted] Court ruled that under the United States Constitution Williams is entitled to a new trial, and a divided Court of Appeals for the Eighth Circuit agreed. The question before us is whether the District Court and the Court of Appeals were wrong.
3
* On the afternoon of December 24, 1968, a 10-year-old girl named Pamela Powers went with her family to the YMCA in Des Moines, Iowa, to watch a wrestling tournament in which her brother was participating. When she failed to return from a trip to the washroom, a search for her began. The search was unsuccessful.
4
Robert Williams, who had recently escaped from a mental hospital, was a resident of the YMCA. Soon after the girl's disappearance Williams was seen in the YMCA lobby carrying some clothing and a large bundle wrapped in a blanket. He obtained help from a 14-year-old boy in opening the street door of the YMCA and the door to his automobile parked outside. When Williams placed the bundle in the front seat of his car the boy "saw two legs in it and they were skinny and white." Before anyone could see what was in the bundle Williams drove away. His abandoned car was found the following day in Davenport, Iowa, roughly 160 miles east of Des Moines. A warrant was then issued in Des Moines for his arrest on a charge of abduction.
5
On the morning of December 26, a Des Moines lawyer named Henry McKnight went to the Des Moines police station and informed the officers present that he had just received a long-distance call from Williams, and that he had advised Williams to turn himself in to the Davenport police. Williams did surrender that morning to the police in Davenport, and they booked him on the charge specified in the arrest warrant and gave him the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Davenport police then telephoned their counterparts in Des Moines to inform them that Williams had surrendered. McKnight, the lawyer, was still at the Des Moines police headquarters, and Williams conversed with McKnight on the telephone. In the presence of the Des Moines chief of police and a police detective named Leaming, McKnight advised Williams that Des Moines police officers would be driving to Davenport to pick him up, that the officers would not interrogate him or mistreat him, and that Williams was not to talk to the officers about Pamela Powers until after consulting with McKnight upon his return to Des Moines. As a result of these conversations, it was agreed between McKnight and the Des Moines police officials that Detective Leaming and a fellow officer would drive to Davenport to pick up Williams, that they would bring him directly back to Des Moines, and that they would not question him during the trip.
6
In the meantime Williams was arraigned before a judge in Davenport on the outstanding arrest warrant. The judge advised him of his Miranda rights and committed him to jail. Before leaving the courtroom, Williams conferred with a lawyer named Kelly, who advised him not to make any statements until consulting with McKnight back in Des Moines.
7
Detective Leaming and his fellow officer arrived in Davenport about noon to pick up Williams and return him to Des Moines. Soon after their arrival they met with Williams and Kelly, who, they understood, was acting as Williams' lawyer. Detective Leaming repeated the Miranda warnings, and told Williams:
8
"(W)e both know that you're being represented here by Mr. Kelly and you're being represented by Mr. McKnight in Des Moines, and . . . I want you to remember this because we'll be visiting between here and Des Moines."
9
Williams then conferred again with Kelly alone, and after this conference Kelly reiterated to Detective Leaming that Williams was not to be questioned about the disappearance of Pamela Powers until after he had consulted with McKnight back in Des Moines. When Leaming expressed some reservations, Kelly firmly stated that the agreement with McKnight was to be carried out that there was to be no interrogation of Williams during the automobile journey to Des Moines. Kelly was denied permission to ride in the police car back to Des Moines with Williams and the two officers.
10
The two detectives, with Williams in their charge, then set out on the 160-mile drive. At no time during the trip did Williams express a willingness to be interrogated in the absence of an attorney. Instead, he stated several times that "(w)hen I get to Des Moines and see Mr. McKnight, I am going to tell you the whole story." Detective Leaming knew that Williams was a former mental patient, and knew also that he was deeply religious.
11
The detective and his prisoner soon embarked on a wide-ranging conversation covering a variety of topics, including the subject of religion. Then, not long after leaving Davenport and reaching the interstate highway, Detective Leaming delivered what has been referred to in the briefs and oral arguments as the "Christian burial speech." Addressing Williams as "Reverend," the detective said:
12
"I want to give you something to think about while we're traveling down the road. . . . Number one, I want you to observe the weather conditions, it's raining, it's sleeting, it's freezing, driving is very treacherous, visibility is poor, it's going to be dark early this evening. They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl's body is, that you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it. And, since we will be going right past the area on the way into Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas (E)ve and murdered. And I feel we should stop and locate it on the way in rather than waiting until morning and trying to come back out after a snow storm and possibly not being able to find it at all."
13
Williams asked Detective Leaming why he thought their route to Des Moines would be taking them past the girl's body, and Leaming responded that he knew the body was in the area of Mitchellville a town they would be passing on the way to Des Moines.1 Leaming then stated: "I do not want you to answer me. I don't want to discuss it any further. Just think about it as we're riding down the road."
14
As the car approached Grinnell, a town approximately 100 miles west of Davenport, Williams asked whether the police had found the victim's shoes. When Detective Leaming replied that he was unsure, Williams directed the officers to a service station where he said he had left the shoes; a search for them proved unsuccessful. As they continued towards Des Moines, Williams asked whether the police had found the blanket, and directed the officers to a rest area where he said he had disposed of the blanket. Nothing was found. The car continued towards Des Moines, and as it approached Mitchellville, Williams said that he would show the officers where the body was. He then directed the police to the body of Pamela Powers.
15
Williams was indicted for first-degree murder. Before trial, his counsel moved to suppress all evidence relating to or resulting from any statements Williams had made during the automobile ride from Davenport to Des Moines. After an evidentiary hearing the trial judge denied the motion. He found that "an agreement was made between defense counsel and the police officials to the effect that the Defendant was not to be questioned on the return trip to Des Moines," and that the evidence in question had been elicited from Williams during "a critical stage in the proceedings requiring the presence of counsel on his request." The judge ruled, however, that Williams had "waived his right to have an attorney present during the giving of such information."2
16
The evidence in question was introduced over counsel's continuing objection at the subsequent trial. The jury found Williams guilty of murder, and the judgment of conviction was affirmed by the Iowa Supreme Court, a bare majority of whose members agreed with the trial court that Williams had 'waived his right to the presence of his counsel' on the automobile ride from Davenport to Des Moines. State v. Williams, Iowa, 182 N.W.2d 396, 402. The four dissenting justices expressed the view that 'when counsel and police have agreed defendant is not to be questioned until counsel is present and defendant has been advised not to talk and repeatedly has stated he will tell the whole story after he talks with counsel, the state should be required to make a stronger showing of intentional voluntary waiver than was made here.' Id., at 408.
17
Williams then petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Iowa. Counsel for the State and for Williams stipulated that "the case would be submitted on the record of facts and proceedings in the trial court, without taking of further testimony." The District Court made findings of fact as summarized above, and concluded as a matter of law that the evidence in question had been wrongly admitted at Williams' trial. This conclusion was based on three alternative and independent grounds: (1) that Williams had been denied his constitutional right to the assistance of counsel; (2) that he had been denied the constitutional protections defined by this Court's decisions in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; and (3) that in any event, his self-incriminatory statements on the automobile trip from Davenport to Des Moines had been involuntarily made. Further, the District Court ruled that there had been no waiver by Williams of the constitutional protections in question. 375 F.Supp. 170.
18
The Court of Appeals for the Eighth Circuit, with one judge dissenting affirmed this judgment, 8 Cir., 509 F.2d 227, and denied a petition for rehearing en banc. We granted certiorari to consider the constitutional issues presented. 423 U.S. 1031, 96 S.Ct. 561, 46 L.Ed.2d 404.
II
A.
19
Before turning to those issues, we must consider the petitioner's threshold claim that the District Court disregarded the provisions of 28 U.S.C. § 2254(d) in making its findings of fact in this case. That statute, which codifies most of the criteria set out in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, provides that, subject to enumerated exceptions, federal habeas corpus courts shall accept as correct the factual determinations made by the courts of the States.3
20
We conclude that there was no disregard of § 2254(d) in this case. Although either of the parties might well have requested an evidentiary hearing in the federal habeas corpus proceedings, Townsend v. Sain, supra, at 322, 83 S.Ct. at 761, they both instead voluntarily agreed in advance that the federal court should decide the case on the record made in the courts of the State,. In so proceeding, the District Court made no findings of fact in conflict with those of the Iowa courts. The District Court did make some additional findings of fact based upon its examination of the state-court record, among them the findings that Kelly, the Davenport lawyer, had requested permission to ride in the police car from Davenport to Des Moines and that Detective Leaming had refused this request. But the additional findings were conscientiously and carefully explained by the District Court, 375 F.Supp., at 175-176, and were reviewed and approved by the Court of Appeals, which expressly held that "the District Court correctly applied 28 U.S.C. § 2254 in its resolution of the disputed evidentiary facts, and that the facts as found by the District Court had substantial basis in the record," 509 F.2d, at 231. The strictures of 28 U.S.C. § 2254(d) require no more.4
B
21
As stated above, the District Court based its judgment in this case on three independent grounds. The Court of Appeals appears to have affirmed the judgment on two of those grounds.5 We have concluded that only one of them need be considered here.
22
Specifically, there is no need to review in this case the doctrine of Miranda v. Arizona, a doctrine designed to secure the constitutional privilege against compulsory self-incrimination, Michigan v. Tucker, 417 U.S. 433, 438-439, 94 S.Ct. 2357, 2360, 2361, 41 L.Ed.2d 182. It is equally unnecessary to evaluate the ruling of the District Court that Williams' self-incriminating statements were, indeed, involuntarily made. Cf. Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265. For it is clear that the judgment before us must in any event be affirmed upon the ground that Williams was deprived of a different constitutional right the right to the assistance of counsel.
23
This right, guaranteed by the Sixth and Fourteenth Amendments, is indispensable to the fair administration of our adversary system of criminal justice. Its vital need at the pretrial stage has perhaps nowhere been more succinctly explained than in Mr. Justice Sutherland's memorable words for the Court 44 years ago in Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158:
24
"(D)uring perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself."
25
There has occasionally been a difference of opinion within the Court as to the peripheral scope of this constitutional right. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387. But its basic contours, which are identical in state and federal contexts, 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, are too well established to require extensive elaboration here. Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, supra, 406 U.S. at 689, 92 S.Ct. at 1882. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Gideon v. Wainwright, supra; White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Coleman v. Alabama, supra.
26
There can be no doubt in the present case that judicial proceedings had been initiated against Williams before the start of the automobile ride from Davenport to Des Moines. A warrant had been issued for his arrest, he had been arraigned on that warrant before a judge in a Davenport courtroom, and he had been committed by the court to confinement in jail. The State does not contend otherwise.
27
There can be no serious doubt, either, that Detective Leaming deliberately and designedly set out to elicit information from Williams just as surely as and perhaps more effectively than if he had formally interrogated him. Detective Leaming was fully aware before departing for Des Moines that Williams was being represented in Davenport by Kelly and in Des Moines by McKnight. Yet he purposely sought during Williams' isolation from his lawyers to obtain as much incriminating information as possible. Indeed, Detective Leaming conceded as much when he testified at Williams' trial:
28
"Q. In fact, Captain, whether he was a mental patient or not, you were trying to get all the information you could before he got to his lawyer, weren't you?
29
"A. I was sure hoping to find out where that little girl was, yes, sir.
30
"Q. Well, I'll put it this way: You was (sic) hoping to get all the information you could before Williams got back to McKnight, weren't you?
31
"A. Yes, sir."6
32
The state courts clearly proceeded upon the hypothesis that Detective Leaming's 'Christian burial speech' had been tantamount to interrogation. Both courts recognized that Williams had been entitled to the assistance of counsel at the time he made the incriminating statements.7 Yet no such constitutional protection would have come into play if there had been no interrogation.
33
The circumstances of this case are thus constitutionally indistinguishable from those presented in Massiah v. United States, supra. The petitioner in that case was indicted for violating the federal narcotics law. He retained a lawyer, pleaded not guilty, and was released on bail. While he was free on bail a federal agent succeeded by surreptitious means in listening to incriminating statements made by him. Evidence of these statements was introduced against the petitioner at his trial, and he was convicted. This Court reversed the conviction, holding "that the petitioner was denied the basic protections of that guarantee (the right to counsel) when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel." 377 U.S., at 206, 84 S.Ct., at 1203.
34
That the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant. See Ibid.; McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682; United States v. Crisp, 435 F.2d 354, 358 (C.A.7); United States ex rel. O'Connor v. New Jersey, 405 F.2d 632, 636 (C.A.3); Hancock v. White, 378 F.2d 479 (C.A.1); Rather, the clear rule of Massiah is that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him.8 It thus requires no wooden or technical application of the Massiah doctrine to conclude that Williams was entitled to the assistance of counsel guaranteed to him by the Sixth and Fourteenth Amendments.
III
35
The Iowa courts recognized that Williams had been denied the constitutional right to the assistance of counsel.9 They held, however, that he had waived that right during the course of the automobile trip from Davenport to Des Moines. The state trial court explained its determination of waiver as follows:
36
"The time element involved on the trip, the general circumstances of it, and more importantly the absence on the Defendant's part of any assertion of his right or desire not to give information absent the presence of his attorney, are the main foundations for the Court's conclusion that he voluntarily waived such right." In its lengthy opinion affirming this determination, the Iowa Supreme Court applied "the totality-of-circumstances test for a showing of waiver of constitutionally-protected rights in the absence of an express waiver," and concluded that "evidence of the time element involved on the trip, the general circumstances of it, and the absence of any request or expressed desire for the aid of counsel before or at the time of giving information, were sufficient to sustain a conclusion that defendant did waive his constitutional rights as alleged." 182 N.W.2d, at 401, 402.
37
In the federal habeas corpus proceeding the District Court, believing that the issue of waiver was not one of fact but of federal law, held that the Iowa courts had "applied the wrong constitutional standards" in ruling that Williams had waived the protections that were his under the Constitution. 375 F.Supp., at 182. The court held "that it is the government which bears a heavy burden . . . but that is the burden which explicitly was placed on (Williams) by the state courts." Ibid. (emphasis in original). After carefully reviewing the evidence, the District Court concluded:
38
"(U)nder the proper standards for determining waiver, there simply is no evidence to support a waiver. . . . (T)here is no affirmative indication . . . that (Williams) did waive his rights . . . (T)he state courts' emphasis on the absence of a demand for counsel was not only legally inappropriate, but factually unsupportable as well, since Detective Leaming himself testified that (Williams), on several occasions during the trip, indicated that he would talk after he saw Mr. McKnight. Both these statements and Mr. Kelly's statement to Detective Leaming that (Williams) would talk only after seeing Mr. McKnight in Des Moines certainly were assertions of (Williams') 'right or desire not to give information absent the presence of his attorney . . ..' Moreover, the statements were obtained only after Detective Leaming's use of psychology on a person whom he knew to be deeply religious and an escapee from a mental hospital with the specific intent to elicit incriminating statements. In the face of this evidence, the State has produced no affirmative evidence whatsoever to support its claim of waiver, and, a fortiori, it cannot be said that the State has met its 'heavy burden' of showing a knowing and intelligent waiver of . . . Sixth Amendment rights." Id., at 182-183 (emphasis in original; footnote omitted).
39
The Court of Appeals approved the reasoning of the District Court:
40
"A review of the record here . . . discloses no facts to support the conclusion of the state court that (Williams) had waived his constitutional rights other than that (he) had made incriminating statements. . . . The District Court here properly concluded that an incorrect constitutional standard had been applied by the state court in determining the issue of waiver. . . .
41
"(T)his court recently held that an accused can voluntarily, knowingly and intelligently waive his right to have counsel present at an interrogation after counsel has been appointed. . . . The prosecution, however, has the weighty obligation to show that the waiver was knowingly and intelligently made. We quote agree with Judge Hanson that the state here failed to so show." 509 F.2d, at 233.
42
The District Court and the Court of Appeals were correct in the view that the question of waiver was not a question of historical fact, but one which, in the words of Mr. Justice Frankfurter, requires "application of constitutional principles to the facts as found . . .." Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (separate opinion). See Townsend v. Sain, 372 U.S., at 309 n. 6, 318, 83 S.Ct., at 759; Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314.
43
The District Court and the Court of Appeals were also correct in their understanding of the proper standard to be applied in determining the question of waiver as a matter of federal constitutional law—that it was incumbent upon the State to prove "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S., at 464, 58 S.Ct., at 1023. That standard has been reiterated in many cases. We have said that the right to counsel does not depend upon a request by the defendant. Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 888, 8 L.Ed.2d 70; cf. Miranda v. Arizona, 384 U.S., at 471, 86 S.Ct., at 1626, and that courts indulge in every reasonable presumption against waiver, e. g., Brookhart v. Janis, supra, 384 U.S. at 4, 86 S.Ct. at 1246; Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680. This strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings. Schneckloth v. Bustamonte, 412 U.S. 218, 238-240, 93 S.Ct. 2041, 2053-2054, 36 L.Ed.2d 854; United States v. Wade, 388 U.S., at 237, 87 S.Ct., at 1937.
44
We conclude, finally that the Court of Appeals was correct in holding that, judged by these standards, the record in this case falls far short of sustaining petitioner's burden. It is true that Williams had been informed of and appeared to understand his right to counsel. But waiver requires not merely comprehension but relinquishment, and Williams' consistent reliance upon the advice of counsel in dealing with the authorities refutes any suggestion that he waived that right. He consulted McKnight by long-distance telephone before turning himself in. He spoke with McKnight by telephone again shortly after being booked. After he was arraigned, Williams sought out and obtained legal advice from Kelly. Williams again consulted with Kelly after Detective Leaming and his fellow officer arrived in Davenport. Throughout, Williams was advised not to make any statements before seeing McKnight in Des Moines, and was assured that the police had agreed not to question him. His statements while in the car that he would tell the whole story after seeing McKnight in Des Moines were the clearest expressions by Williams himself that he desired the presence of an attorney before any interrogation took place. But even before making these statements, Williams had effectively asserted his right to counsel by having secured attorneys at both ends of the automobile trip, both of whom, acting as his agents, had made clear to the police that no interrogation was to occur during the journey. Williams knew of that agreement and, particularly in view of his consistent reliance on counsel, there is no basis for concluding that he disavowed it.10
45
Despite Williams' express and implicit assertions of his right to counsel, Detective Leaming proceeded to elicit incriminating statements from Williams. Leaming did not preface this effort by telling Williams that he had a right to the presence of a lawyer, and made no effort at all to ascertain whether Williams wished to relinquish that right. The circumstances of record in this case thus provide no reasonable basis for finding that Williams waived his right to the assistance of counsel.
46
The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments.11 It only held, as do we, that he did not.
IV
47
The crime of which Williams was convicted was senseless and brutal, calling for swift and energetic action by the police to apprehend the perpetrator and gather evidence with which he could be convicted. No mission of law enforcement officials is more important. Yet "(d)isinterested zeal for the public good does not assure either wisdom or right in the methods it pursues." Haley v. Ohio, 332 U.S. 596, 605, 68 S.Ct. 302, 306, 92 L.Ed. 224 (Frankfurter, J., concurring in judgment). Although we do not lightly affirm the issuance of a writ of habeas corpus in this case, so clear a violation of the Sixth and Fourteenth Amendments as here occurred cannot be condoned. The pressures on state executive and judicial officers charged with the administration of the criminal law are great, especially when the crime is murder and the victim a small child. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all.
48
The judgment of the Court of Appeals is affirmed.12
It is so ordered.13
49
Mr. Justice MARSHALL, concurring.
50
I concur wholeheartedly in my Brother STEWART's opinion for the Court, but add these words in light of the dissenting opinions filed today. The dissenters have, I believe, lost sight of the fundamental constitutional backbone of our criminal law. They seem to think that Detective Leaming's actions were perfectly proper, indeed laudable, examples of "good police work." In my view, good police work is something far different from catching the criminal at any price. It is equally important that the police, as guardians of the law, fulfill their responsibility to obey its commands scrupulously. For "in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves." Spano v. New York, 360 U.S. 315, 320-321, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265 (1959).
51
In this case, there can be no doubt that Detective Leaming consciously and knowingly set out to violate Williams' Sixth Amendment right to counsel and his Fifth Amendment privilege against self-incrimination, as Leaming himself understood those rights. Leaming knew that Williams had been advised by two lawyers not to make any statements to police until he conferred in Des Moines with his attorney there, Mr. McKnight. Leaming surely understood, because he had overheard McKnight tell Williams as much, that the location of the body would be revealed to police. Undoubtedly Leaming realized the way in which that information would be conveyed to the police: McKnight would learn it from his client and then he would lead police to the body. Williams would thereby be protected by the attorney-client privilege from incriminating himself by directly demonstrating his knowledge of the body's location, and the unfortunate Powers child could be given a "Christian burial."
52
Of course, this scenario would accomplish all that Leaming sought from his investigation except that it would not produce incriminating statements or actions from Williams. Accordingly, Leaming undertook his charade to pry such evidence from Williams. After invoking the no-passengers rule to prevent attorney Kelly from accompanying the prisoner, Leaming had Williams at his mercy: during the three- or four-hour trip he could do anything he wished to elicit a confession. The detective demonstrated once again "that the efficiency of the rack and the thumbscrew can be matched, given the proper subject by more sophisticated modes of 'persuasion.' " Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960).
53
Leaming knowingly isolated Williams from the protection of his lawyers and during that period he intentionally "persuaded" him to give incriminating evidence. It is this intentional police misconduct not good police practice that the Court rightly condemns. The heinous nature of the crime is no excuse, as the dissenters would have it, for condoning knowing and intentional police transgression of the constitutional rights of a defendant. If Williams is to go free and given the ingenuity of Iowa prosecutors on retrial or in a civil commitment proceeding, I doubt very much that there is any change a dangerous criminal will be loosed on the streets, the bloodcurdling cries of the dissents notwithstanding it will hardly be because he deserves it. It will be because Detective Leaming, knowing full well that he risked reversal of Williams' conviction, intentionally denied Williams the right of every American under the Sixth Amendment to have the protective shield of a lawyer between himself and the awesome power of the State.
54
I think it appropriate here to recall not Mr. Justice Cardozo's opinion in People v. Defore, 242 N.Y. 13, 150 N.E. 585 (1926), see opinion of THE CHIEF JUSTICE, post, at 1248, and n. 1, but rather the closing words of Mr. Justice Brandeis' great dissent in Olmstead v. United States, 277 U.S. 438, 471, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928):
55
"In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means to declare that the Government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face."
56
Mr. Justice POWELL, concurring.
57
As the dissenting opinion of THE CHIEF JUSTICE sharply illustrates, resolution of the issues in this case turns primarily on one's perception of the facts. There is little difference of opinion, among the several courts and numerous judges who have reviewed the case, as to the relevant constitutional principles: (i) Williams had the right to assistance of counsel; (ii) once that right attached (it is conceded that it had in this case), the State could not properly interrogate Williams in the absence of counsel unless he voluntarily and knowingly waive the right; and (iii) the burden was on the State to show that Williams in fact had waived the right before the police interrogated him.
58
The critical factual issue is whether there had been a voluntary waiver, and this turns in large part upon whether there was interrogation. As my dissenting Brothers view the facts so differently from my own perception of them, I will repeat briefly the background, setting, and factual predicate to the incriminating statements by Williams even though the opinion of the Court sets forth all of this quite accurately.
59
* Prior to the automobile trip from Davenport to Des Moines, Williams had been arrested, booked, and carefully given Miranda warnings. It is settled constitutional doctrine that he then had the right to the assistance of counsel. His exercise of this right was evidenced uniquely in this case. Williams had consulted counsel prior to his arrest, and surrendered to the police on advice of counsel. At all times thereafter Williams, to the knowledge of the police, had two attorneys: McKnight, whom Williams consulted initially and who awaited his arrival in Des Moines, and Kelly, who had represented Williams in Davenport where he surrendered. Significantly, the recognition by the police of the statutes of counsel was evidenced by the express agreement between McKnight and the appropriate police officials that the officers who would drive Williams to Des Moines would not interrogate him in the absence of counsel.
60
The incriminating statements were made by Williams during the long ride while in the custody of two police officers, and in the absence of his retained counsel. The dissent of THE CHIEF JUSTICE concludes that prior to these statements, Williams had 'made a valid waiver' of his right to have counsel present. Post, at 417. This view disregards the record evidence clearly indicating that the police engaged in interrogation of Williams. For example, the District Court noted:
61
"According to Detective Leaming's own testimony, the specific purpose of this conversation (which was initiated by Leaming and which preceded Williams' confession) was to obtain statements and information from (Williams) concerning the missing girl." 375 F.Supp. 170, 174.
62
In support of that finding, the District Court quoted extensively from Leaming's testimony, including the following:
63
"Q. In fact, Captain, whether (Williams) was a mental patient or not, you were trying to get all the information you could before he got to his lawyer, weren't you?
64
"A. I was sure hoping to find out where that little girl was, yes, sir.
65
"Q. Well, I'll put it this way: You are hoping to get all the information you could before Williams got back to McKnight, weren't you?
66
"A. Yes, sir." Ibid.
67
After finding, upon a full review of the facts, that there had been "interrogation," the District Court addressed the ultimate issue of "waiver" and concluded not only that the State had failed to carry its burden but also that
68
"there is nothing in the record to indicate that (Williams) waived his Fifth and Sixth Amendment rights except the fact that statements eventually were obtained." Id., at 182. (Emphasis in original.)
69
The Court of Appeals stated affirmatively that "the facts as found by the District Court had substantial basis in the record." 509 F.2d 227, 231.1
70
I join the opinion of the Court which also finds that the efforts of Detective Leaming "to elicit information from Williams," as conceded by counsel for petitioner at oral argument, ante, at 400 n. 6, were a skillful and effective form of interrogation. Moreover, the entire setting was conducive to the psychological coercion that was successfully exploited. Williams was known by the police to be a young man with quixotic religious convictions and a history of mental disorders. The date was the day after Christmas, the weather was ominous, and the setting appropriate for Detective Leaming's talk of snow concealing the body and preventing a "Christian burial." Williams was alone in the automobile with two police officers for several hours. It is clear from the record, as both of the federal courts below found, that there was no evidence of a knowing and voluntary waiver of the right to have counsel present beyond the fact that Williams ultimately confessed. It is settled law that an inferred waiver of a constitutional right is disfavored. Estelle v. Williams, 425 U.S. 501, 515, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126 (1976) (Powell, J., concurring). I find no basis in the record of this case or in the dissenting opinions for disagreeing with the conclusion of the District Court that "the State has produced no affirmative evidence whatsoever to support its claim of waiver." 375 F.Supp., at 183.
71
The dissenting opinion of THE CHIEF JUSTICE states that the Court's holding today "conclusively presumes a suspect is legally incompetent to change his mind and tell the truth until an attorney is present." Post, at 419. I find no justification for this view. On the contrary, the opinion of the Court is explicitly clear that the right to assistance of counsel may be waived, after it has attached, without notice to or consultation with counsel. Ante, at 405-406. We would have such a case here if petitioner had proved that the police officers refrained from coercion and interrogation, as they had agreed, and that Williams freely on his own initiative had confessed the crime.
II
72
In discussing the exclusionary rule, the dissenting opinion of THE CHIEF JUSTICE refers to Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), decided last Term. In that case, we held that a federal court need not apply the exclusionary rule on habeas corpus review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review.
73
This case also involves review on habeas corpus of a state conviction, and the decisions that the Court today affirms held that Williams' incriminating statements should have been excluded.2 As Stone was decided subsequently to these decisions, the courts below had no occasion to consider whether the principle enunciated in Stone may have been applicable in this case. That question has not been presented in the briefs or arguments submitted to us,3 and we therefore have no occasion to consider the possible applicability of Stone. The applicability of the rationale of Stone in the Fifth and Sixth Amendment context raises a number of unresolved issues. Many Fifth and Sixth Amendment claims arise in the context of challenges to the fairness of a trial or to the integrity of the factfinding process. In contrast, Fourth Amendment claims uniformly involve evidence that is "typically reliable and often the most probative information bearing on the guilt or innocence of the defendant." Stone v. Powell, supra, at 490, 96 S.Ct., at 3050. Whether the rationale of Stone should be applied to those Fifth and Sixth Amendment claims or classes of claims that more closely parallel claims under the Fourth Amendment is a question as to which I intimate no view, and which should be resolved only after the implications of such a ruling have been fully explored.
74
Mr. Justice STEVENS, concurring.
75
Mr. Justice STEWART, in his opinion for the Court which I joint, Mr. Justice POWELL, and Mr. Justice MARSHALL have accurately explained the reasons why the law requires the result we reach today. Nevertheless, the strong language in the dissenting opinions prompts me to add this brief comment about the Court's function in a case such as this.
76
Nothing that we write, no matter how well reasoned or forcefully expressed, can bring back the victim of this tragedy or undo the consequences of the official neglect which led to the respondent's escape from a state mental institution. The emotional aspects of the case make it difficult to decide dispassionately, but to do qualify our obligation to apply the law with an eye to the future as well as with concern for the result in the particular case before us.
77
Underlying the surface issues in this case is the question whether a fugitive from justice can rely on his lawyer's advice given in connection with a decision to surrender voluntarily. The defendant placed his trust in an experienced Iowa trial lawyer who in turn trusted the Iowa law enforcement authorities to honor a commitment made during negotiations which led to the apprehension of a potentially dangerous person. Under any analysis, this was a critical stage of the proceeding in which the participation of an independent professional was of vital importance to the accused and to society. At this stage as in countless others in which the law profoundly affects the life of the individual the lawyer is the essential medium through which the demands and commitments of the sovereign are communicated to the citizen. If, in the long run, we are seriously concerned about the individuals effective representation by counsel, the State cannot be permitted to dishonor its promise to this lawyer.*
78
Mr. Chief Justice BURGER, dissenting.
79
The result in this case ought to be intolerable in any society which purports to call itself an organized society. It continues the Court by the narrowest margin on the much-criticized course of punishing the public for the mistakes and misdeeds of law enforcement officers, instead of punishing the officer directly, if in fact he is guilty of wrongdoing. It mechanically and blindly keeps reliable evidence from juries whether the claimed constitutional violation involves gross police misconduct or honest human error.
80
Williams is guilty of the savage murder of a small child; no member of the Court contends he is not. While in custody, and after no fewer than five warnings of his rights to silence and to counsel, he led police to the concealed body of his victim. The Court concedes Williams was not threatened or coerced and that he spoke and acted voluntarily and with full awareness of his constitutional rights. In the face of all this, the Court now holds that because Williams was prompted by the detective's statement not interrogation but a statement the jury must not be told how the police found the body.
81
Today's holding fulfills Judge (later Mr. Justice) Cardozo's grim prophecy that someday some court might carry the exclusionary rule to the absurd extent that its operative effect would exclude evidence relating to the body of a murder victim because of the means by which it was found.1 In so ruling the Court regresses to playing a grisly game of "hide and seek," once more exalting the sporting theory of criminal justice which has been experiencing a decline in our jurisprudence. With Justices WHITE, BLACKMUN, and REHNQUIST, I categorically reject the remarkable notion that the police in this case were guilty of unconstitutional misconduct, or any conduct justifying the bizarre result reached by the Court. Apart from a brief comment n the merits, however, I wish to focus on the irrationality of applying the increasingly discredited exclusionary rule to this case.
82
(1)
83
The Court Concedes Williams' Disclosures Were Voluntary
84
Under well-settled precedents which the Court freely acknowledges, it is very clear that Williams had made a valid waiver of his Fifth Amendment right to silence and his Sixth Amendment right to counsel when he led police to the child's body. Indeed, even under the Court's analysis I do not understand how a contrary conclusion is possible.
85
The Court purports to apply as the appropriate constitutional waiver standard the familiar "intentional relinquishment or abandonment of a known right or privilege" test of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 12 L.Ed.2d 246 (1938). Ante, at 404. The Court assumes, without deciding, that Williams' conduct and statements were voluntary. It concedes, as it must, ibid., that Williams had been informed of and fully understood his constitutional rights and the consequences of their waiver. Then, having either assumed or found every element necessary to make out a valid waiver under its own test, the Court reaches the astonishing conclusion that no valid waiver has been demonstrated.
86
This remarkable result is compounded by the Court's failure to define what evidentiary showing the State failed to make. Only recently, in Schneckloth v. Bustamonte, 412 U.S. 218, 238 n. 25, 93 S.Ct. 2041, 2053, n. 25, 36 L.Ed.2d 854 (1973), the Court analyzed the distinction between a voluntary act and the waiver of a right; there Mr. Justice Stewart stated for the Court:
87
"(T)he question whether a person has acted 'voluntarily' is quite distinct from the question whether he has 'waived' a trial right. The former question, as we made clear in Brady v. United States, 397 U.S., (742) at 749, 90 S.Ct. (1463), at 1469 (25 L.Ed.2d 747,) can be answered only by examining all the relevant circumstances to determine if he has been coerced. The later question turns on the extent of his knowledge."
88
Similarly, in McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 1446, 25 L.Ed.2d 763 (1970), we said that since a guilty plea constituted a waiver of a host of constitutional rights, "it must be an intelligent act 'done with sufficient awareness of the relevant circumstances and likely consequences.' " If the Court today applied these standards with fidelity to the Schneckloth and McMann holdings it could not reach the result now announced.
89
The evidence is uncontradicted that Williams had abundant knowledge of his right to have counsel present and of his right to silence. Since the Court does not question his mental competence, it boggles the mind to suggest that Williams could not understand that leading police to the child's body would have other than the most serious consequences. All of the elements necessary to make out a valid waiver are shown by the record and acknowledged by the Court; we thus are left to guess how the Court reached its holding.
90
One plausible but unarticulated basis for the result reached is that once a suspect has asserted his right not to talk without the presence of an attorney, it becomes legally impossible for him to waive that right until he has seen an attorney. But constitutional rights are personal, and an otherwise valid waiver should not be brushed aside by judges simply because an attorney was not present. The Court's holding operates to "imprison a man in his privileges," Adams v. United States ex rel. McCann, 317 U.S. 269, 280, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942); it conclusively presumes a suspect is legally incompetent to change his mind and tell the truth until an attorney is present. It denigrates an individual to a nonperson whose free will has become hostage to a lawyer so that until the lawyer consents, the suspect is deprived of any legal right or power to decide for himself that he wishes to make a disclosure. It denies that the rights to counsel and silence are personal, nondelegable, and subject to a waiver only by that individual.2 The opinions in support of the Court's judgment do not enlighten us as to why police conduct whether good or bad should operate to suspend Williams' right to change his mind and "tell all" at once rather than waiting until he reached Des Moines.3
91
In his concurring opinion Mr. Justice POWELL suggests that the result in this case turns on whether Detective Leaming's remarks constituted "interrogation," as he views them, or whether they were "statements" intended to prick the conscience of the accused. I find it most remarkable that a murder case should turn on judicial interpretation that a statement becomes a question simply because it is followed by an incriminating disclosure from the suspect. The Court seems to be saying that since Williams said he would "tell the whole story" at Des Moines, the police should have been content and waited; of course, that would have been the wiser course, especially in light of the nuances of constitutional jurisprudence applied by the Court, but a murder case ought no turn on such tenuous strands.
92
In any case, the Court assures us, ante at 405-406, this is not at all what it intends, and that a valid waiver was possible in these circumstances, but was not quite made. Here, of course, Williams did not confess to the murder in so many words; it was his conduct in guiding police to the body, not his words, which incriminated him. And the record is replete with evidence that Williams knew precisely what he was doing when he guided police to the body. The human urge to confess wrongdoing is, of course, normal in all save hardened, professional criminals, as psychiatrists and analysts have demonstrated. T. Reik, The Compulsion to Confess (1972).
93
(2)
94
The Exclusionary Rule Should Not be Applied to Non-egregious Police Conduct
95
Even if thee was no waiver, and assuming a technical violation occurred, the Court errs gravely in mechanically applying the exclusionary rule without considering whether that Draconian judicial doctrine should be invoked in these circumstances, or indeed whether any of its conceivable goals will be furthered by its application here.
96
The obvious flaws of the exclusionary rule as a judicial remedy are familiar. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 91 S.Ct. 1999, 2012, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting); Stone v. Powell, 428 U.S. 465, 498-502, 96 S.Ct. 3037, 3053-3055, 49 L.Ed.2d 1067 (1976) (Burger, C. J., concurring); Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665 (1970); Williams, The Exclusionary Rule Under Foreign Law England, 52 J.Crim.L. 272 (1961). Today's holding interrupts what has been a more rational perception of the constitutional and social utility of excluding reliable evidence from the truth-seeking process. In its Fourth Amendment context, we have now recognized that the exclusionary rule is in no sense a personal constitutional right, but a judicially conceived remedial device designed to safeguard and effectuate guaranteed legal rights generally. Stone v. Powell, supra, at 482, 96 S.Ct., at 3046; United States v. Janis, 428 U.S. 433, 443-447, 96 S.Ct. 3021, 3027-3029, 49 L.Ed.2d 1046 (1976); United States v. Calandra, 414 U.S. 338, 347-348, 94 S.Ct. 613, 619-620, 38 L.Ed.2d 561 (1974); see Alderman v. United States, 394 U.S. 165, 174-175, 89 S.Ct. 961, 966-967, 22 L.Ed.2d 176 (1969). We have repeatedly emphasized that deterrence of unconstitutional or otherwise unlawful police conduct is the only valid justification for excluding reliable and probative evidence from the criminal factfinding process. Stone v. Powell, supra, at 485-486, 96 S.Ct. at 3047-3048; United States v. Janis, supra, at 446, 458-459, n. 35, 96 S.Ct., at 3028, 3034, n. 35; United States v. Peltier, 422 U.S. 531, 536-539, 95 S.Ct. 2313, 2317- 2318, 45 L.Ed.2d 374 (1975).
97
Accordingly, unlawfully obtained evidence is not automatically excluded from the factfinding process in all circumstances.4 In a variety of contexts we inquire whether application of the rule will promote its objectives sufficiently to justify the enormous cost it imposes on society. "As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, supra, at 348, 94 S.Ct., at 620; accord, Stone v. Powell, supra, at 486-491, 96 S.Ct., at 3048-3050; United States v. Janis, supra; Brown v. Illinois, 422 U.S. 590, 606, 608-609, 95 S.Ct. 2254, 2264-2265, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part); United States v. Peltier, supra, at 538-539, 95 S.Ct., at 2318.
98
This is, of course, the familiar balancing process applicable to cases in which important competing interests are at stake. It is a recognition, albeit belated, that "the policies behind the exclusionary rule are not absolute," Stone v. Powell, supra, at 488, 96 S.Ct., at 3049. It acknowledges that so serious an infringement of the crucial truth-seeking function of a criminal prosecution should be allowed only when imperative to safeguard constitutional rights. An important factor in this amalgam is whether the violation at issue may properly be classed as "egregious." Brown v. Illinois, supra, at 609, 95 S.Ct., at 2264 (Powell, J., concurring in part). The Court understandably does not try to characterize the police actions here as "egregious."
99
Against this background, it is striking that the Court fails even to consider whether the benefits secured by application of the exclusionary rule in this case outweigh its obvious social costs. Perhaps the failure is due to the fact that this case arises not under the Fourth Amendment, but under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the Sixth Amendment right to counsel. The Court apparently perceives the function of the exclusionary rule to be so different in these varying contexts that it must be mechanically and uncritically applied in all cases arising outside the Fourth Amendment.5
100
But this is demonstrably not the case where police conduct collides with Miranda's procedural safeguards rather than with the Fifth Amendment privilege against compulsory self-incrimination. Involuntary and coerced admissions are suppressed because of the inherent unreliability of a confession wrung from an unwilling suspect by threats, brutality, or other coercion. Schneckloth v. Bustamonte, 412 U.S., at 242, 93 S.Ct., at 2055; Linkletter v. Walker, 381 U.S. 618, 638, 85 S.Ct. 1731, 1742, 14 L.Ed.2d 601 (1965); Stone v. Powell, 428 U.S., at 496-497, 96 S.Ct., at 3052-3053 (Burger, C. J., concurring); Kaufman v. United States, 394 U.S. 217, 237, 89 S.Ct. 1068, 1079, 22 L.Ed.2d 227 (1969) (Black, J., dissenting). We can all agree on "(t)he abhorrence of society to the use of involuntary confessions." Linkletter v. Walker, supra, at 638, 85 S.Ct., at 1742, and the need to preserve the integrity of the human personality and individual free will. Ibid.; Blackburn v. Alabama, 361 U.S. 199, 206-207, 80 S.Ct. 274, 279-280, 4 L.Ed.2d 242 (1960).
101
But use of Williams' disclosures and their fruits carries no risk whatever of unreliability, for the body was found where he said it would be found. Moreover, since the Court makes no issue of voluntariness, no dangers are posed to individual dignity or free will. Miranda's safeguards are premised on presumed unreliability long associated with confessions extorted by brutality or threats; they are not personal constitutional rights, but are simply judicially created prophylactic measures. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91 (1976); Brown v. Illinois, supra, at 606, 95 S.Ct., at 2263 (Powell, J., concurring in part).
102
Thus, in cases where incriminating disclosures are voluntarily made without coercion, and hence not violative of the Fifth Amendment, but are obtained in violation of one of the Miranda prophylaxes, suppression is no longer automatic. Rather, we weigh the deterrent effect on unlawful police conduct, together with the normative Fifth Amendment justifications for suppression, against "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. . . . We also 'must consider society's interest in the effective prosecution of criminals . . ..' " Michigan v. Tucker, supra, at 450, 94 S.Ct., at 2367.6 This individualized consideration or balancing process with respect to the exclusionary sanction is possible in this case, as in others, because Williams' incriminating disclosures are not infected with any element of compulsion the Fifth Amendment forbids; nor, as noted earlier, does this evidence pose any danger of unreliability to the factfinding process. In short, there is no reason to exclude this evidence.
103
Similarly, the exclusionary rule is not uniformly implicated in the Sixth Amendment, particularly its pretrial aspects. We have held that
104
"the core purpose of the counsel guarantee was to assure 'Assistance' at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor." United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 2573, 37 L.Ed.2d 619 (1973).
105
Thus, the right to counsel is fundamentally a "trial" right necessitated by the legal complexities of a criminal prosecution and the need to offset, to the trier of fact, the power of the State as prosecutor. See Schneckloth v. Bustamonte, supra, at 241, 93 S.Ct. at 2055. It is now thought that modern law enforcement involves pretrial confrontations at which the defendant's fate might effectively be sealed before the right of counsel could attach. In order to make meaningful the defendant's opportunity to a fair trial and to assistance of counsel at that trial the core purposes of the counsel guarantee the Court formulated a per se rule guaranteeing counsel at what it has characterized as "critical" pretrial proceedings where substantial rights might be endangered. United States v. Wade, 388 U.S. 218, 224-227, 87 S.Ct. 1926, 1930-1932, 18 L.Ed.2d 1149 (1967); Schneckloth v. Bustamonte, supra, at 238-239, 93 S.Ct. at 2053-2054.
106
As we have seen in the Fifth Amendment setting, violations of prophylactic rules designed to safeguard other constitutional guarantees and deter impermissible police conduct need not call for the automatic suppression of evidence without regard to the purposes served by exclusion; nor do Fourth Amendment violations merit uncritical suppression of evidence. In other situations we decline to suppress eyewitness identifications which are the products of unnecessarily suggestive lineups or photo displays unless there is a "very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Recognizing that "(i)t is the likelihood of misidentification which violates a defendant's right to due process," Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972), we exclude evidence only when essential to safeguard the integrity of the truth-seeking process. The test, in short, is the reliability of the evidence.
107
So, too, in the Sixth Amendment sphere failure to have counsel in a pretrial setting should not lead to the "knee-jerk" suppression of relevant and reliable evidence. Just as even uncounseled "critical" pretrial confrontations may often be conducted fairly and not in derogation of Sixth Amendment values, Stovall v. Denno, 388 U.S. 293, 298-299, 299, 87 S.Ct. 1967, 1970-1971, 18 L.Ed.2d 1199 (1967), evidence obtained in such proceedings should be suppressed only when its use would imperil the core values the Amendment was written to protect. Having extended Sixth Amendment concepts originally thought to relate to the trial itself to earlier periods when a criminal investigation is focused on a suspect, application of the drastic bar of exclusion should be approached with caution.
108
In any event, the fundamental purpose of the Sixth Amendment is to safeguard the fairness of the trial and the integrity of the factfinding process.7 In this case, where the evidence of how the child's body was found is of unquestioned reliability, and since the Court accepts Williams' disclosures as voluntary and uncoerced, there is no issue either of fairness or evidentiary reliability to justify suppression of truth. It appears suppression is mandated here for no other reason than the Court's general impression that it may have a beneficial effect on future police conduct; indeed, the Court fails to say even that much in defense of its holding.
109
Thus, whether considered under Miranda or the Sixth Amendment, there is no more than there was in Stone v. Powell;8 that holding was premised on the utter reliability of evidence sought to be suppressed, the irrelevancy of the constitutional claim to the criminal defendant's factual guilt or innocence, and the minimal deterrent effect of habeas corpus on police misconduct. This case, like Stone v. Powell, comes to us by way of habeas corpus after a fair trial and appeal in the state courts. Relevant factors in this case are thus indistinguishable from those in Stone, and from those in other Fourth Amendment cases suggesting a balancing approach toward utilization of the exclusionary sanction. Rather than adopting a formalistic analysis varying with the constitutional provision invoked,9 we should apply the exclusionary rule on the basis of its benefits and costs, at least in those cases where the police conduct at issue is far from being outrageous or egregious.
110
In his opinion, Mr. Justice POWELL intimates that he agrees there is little sense in applying the exclusionary sanction where the evidence suppressed is "typically reliable and often the most probative information bearing on the guilt or innocence of the defendant." Ante, at 414, Since he seems to concede that the evidence in question is highly reliable and probative, his joining the Court's opinion can be explained only by an insistence that the 'question has not been presented in the briefs or arguments submitted to us.' Ibid. But petitioner has directly challenged the applicability of the exclusionary rule to this case, Brief for Petitioner 31-32, and has invoked principles of comity and federalism against reversal of the conviction. Id., at 69-73. Moreover, at oral argument the first opportunity to do so petitioner argued that our intervening decision in Stone v. Powell should be extended to this case, just as respondent argued that it should not. Tr. of Oral Arg. 26-27, 49-50.
111
At the least, if our intervening decision in Stone makes application of the exclusionary rule in this case an open question which 'should be resolved only after the implications of such a ruling have been fully explored,' the plainly proper course is to vacate the judgment of the Court of Appeals and remand the case for reconsideration in light of that case. Indeed, only recently we actually applied the intervening decision of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), to resolve the constitutional issue in Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). There, we found no difficulty in applying the intervening holding ourselves without a remand to give the Court of Appeals an opportunity to reconsider its holding; we reached the correct result directly, over Mr. Justice White's dissent urging a remand. Today, the Court declines either to apply the intervening case of Stone v. Powell, which Mr. Justice POWELL admits may well be controlling, or to remand for reconsideration in light of that case; this is all the more surprising since Mr. Justice POWELL wrote Stone v. Powell and today makes the fifth vote for the Court's judgment.
112
The bizarre result reached by the Court today recalls Mr. Justice Black's strong dissent in Kaufman v. United States, 394 U.S., at 231, 89 S.Ct., at 1076. There, too, a defendant sought release after his conviction had been affirmed on appeal. There, as here, the defendant's guilt was manifest, and was not called into question by the constitutional claims presented. This Court granted relief because it thought reliable evidence had been unconstitutionally obtained. Mr. Justice Black's reaction, foreshadowing our long overdue holding in Stone v. Powell, serves as a fitting conclusion to the views I have expressed:
113
"It is seemingly becoming more and more difficult to gain acceptance for the proposition that punishment of the guilty is desirable, other things being equal. One commentator, who attempted in vain to dissuade this Court from today's holding, thought it necessary to point out that there is 'a strong public interest in convicting the guilty." . . .
114
". . . I would not let any criminal conviction become invulnerable to collateral attack where there is left remaining the probability or possibility that constitutional commands related to the integrity of the fact-finding process have been violated. In such situations society has failed to perform its obligation to prove beyond a reasonable doubt that the defendant committed the crime. But it is quote a different thing to permit collateral attack on a conviction after a trial according to due process when the defendant clearly is, by the proof and by his own admission, guilty of the crime charged. . . . In collateral attacks whether by habeas corpus or by § 2255 proceedings, I would always require that the convicted defendant raise the kind of constitutional claim that casts some shadow of a doubt on his guilt. This defendant is permitted to attack his conviction collaterally although he conceded at the trial and does not now deny that he had robbed the savings and loan association and although the evidence makes absolutely clear that he knew what he was doing. Thus, his guilt being certain, surely he does not have a constitutional right to get a new trial. I cannot possibly agree with the Court." 394 U.S., at 240-242, 89 S.Ct. at 1081.
115
Like Mr. Justice Black in Kaufman, I cannot possibly agree with the Court.
116
Mr. Justice WHITE, with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join, dissenting.
117
The respondent in this case killed a 10-year-old child, holding that certain statements of unquestioned reliability wee unconstitutionally obtained from him, and under the circumstances probably makes it impossible to retry him. Because there is nothing in the Constitution or in our previous cases which requires the Court's action, I dissent.
118
* The victim in this case disappeared from a YMCA building in Des Moines, Iowa, on Christmas Eve in 1968. Respondent was seen shortly thereafter carrying a bundle wrapped in a blanket from the YMCA to his car. His car was found in Davenport, Iowa, 160 miles away on Christmas Day. A warrant was then issued for his arrest. On the day after Christmas respondent surrendered himself voluntarily to local police in Davenport where he was arraigned. The Des Moines police, in turn, drove to Davenport, picked respondent up and drive him back to Des Moines. During the trip back to Des Moines respondent made statements evidencing his knowledge of the whereabouts of the victim's clothing and body and leading the police to the body. The statements were, of course, made without the presence of counsel since no counsel was in the police car. The issue in this case is whether respondent who was entitled not to make any statements to the police without consultation with and/or presence of counsel1 validly waived those rights.
119
The relevant facts are as follows. Before the Des Moines police officers arrived in Davenport, respondent was twice advised, once by Davenport police and once by a judge, of his right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Respondent had in any event not only retained counsel prior to the arrival of the Des Moines police, but had consulted with that counsel on the subject of talking to the police. His attorney, Mr. Moines police office when respondent was in the Davenport police office. He advised respondent not to talk to the Des Moines police officers during the trip back to Des Moines, but told him that he was "going to have to tell the officers where she (the victim) is" when he arrived in Des Moines. Davenport, who also advised him against talking to the police during the ride back to Des Moines. Thus, prior to the arrival of the Des Moines police, respondent had been effectively informed by at least four people that he need not talk to the police in the absence of counsel during his trip to Des Moines. Then, when the Des Moines police arrived, one of them advised respondent, inter alia, "that he had a right to an attorney present during any questioning." The Des Moines police officer asked respondent: "(D)o you fully understand that?" Respondent said that he did. The officer then "advised him that (the officer) wanted him to be sure to remember what (the officer) had just told him because it was a long ride back to Des Moines and he and (the officer) would be visiting." Respondent then consulted again with the Davenport attorney, who advised him not to make any statements to the police officers and so informed the officers directing them not to question him. After this series of warnings by two attorneys, two sets of police officers, and a judge, the trip to Des Moines commenced.
120
Sometime early in the trip one of the officers, Detective Leaming, said:
121
"I want to give you something to think about while we're traveling down the road. . . . Number one, I want you to observe the weather conditions, it's raining, it's sleeting, it's freezing, driving is very treacherous, visibility is poor, it's going to be dark early this evening. They are predicting several inches of snow for tonight, and I feel that y u yourself are the only person that knows where this little girl's body is, that you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it. And, since we will be going right past the area on the way into Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas (E)ve and murdered. And I feel we should stop and locate it on the way in rather than waiting until morning and trying to come back out after a snow storm and possibly not being able to find it at all."
122
Respondent asked Detective Leaming why he thought their route to Des Moines would be taking them past the girl's body, and Leaming responded that he knew the body was in the area of Mitchellville—a town they would be passing on the way to Des Moines. Leaming then stated: "I do not want you to answer me. I don't want to discuss it any further. Just think about it as we're riding down the road." On several occasions during the trip, respondent told the officers that he would tell them the whole story when he got to Des Moines and saw Mr. McKnight—an indication that he knew he was entitled to wait until his counsel was present before talking to the police.2
123
Some considerable time thereafter,3 without any prompting on the part of any state official so far as the record reveals, respondent asked whether the police had found the victim's shoes. The subject of the victim's clothing had never been broached by the police nor suggested by anything the police had said. So far as the record reveals, the subject was suggested to respondent solely by the fact that the police car was then about to pass the gas station where respondent had hidden the shoes. When the police said they were unsure whether they had found the shoes, respondent directed them to the gas station. When the car continued on its way to Des Moines, respondent asked whether the blanket had been found. Once again this subject had not previously been broached. Respondent directed the officers to a rest area where he had left the blanket. When the car again continued, respondent said that he would direct the officers to the victim's body, and he did so.
II
124
The strictest test of waiver which might be applied to this case is that set forth in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), and quoted by the majority, ante, at 404. In order to show that a right has been waived under this test, the State must prove "an intentional relinquishment or abandonment of a known right or privilege." The majority creates no new rule preventing an accused who has retained a lawyer from waiving his right to the lawyer's presence during questioning. The majority simply finds that no waiver was proved in this case. I disagree. That respondent knew of his right not to say anything to the officers without advice and presence of counsel is established on this record to a moral certainty. He was advised of the right by three officials of the State telling at least one that he understood the right and by two lawyers.4 Finally, he further demonstrated his knowledge of the right by informing the police that he would tell them the story in the presence of McKnight when they arrived in Des Moines. The issue in this case, then, is whether respondent relinquished that right intentionally.
125
Respondent relinquished his right not to talk to the police about his crime when the car approached the place where he had hidden the victim's clothes. Men usually intend to do what they do, and there is nothing in the record to support the proposition that respondent's decision to talk was anything but an exercise of his own free will. Apparently, without any prodding from the officers, respondent—who had earlier said that he would tell the whole story when he arrived in Des Moines—spontaneously changed him mind about the timing of his disclosures when the car approached the places where he had hidden the evidence. However, even if his statements were influenced by Detective Leaming's above-quoted statement, respondent's decision to talk in the absence of counsel can hardly be viewed as the product of an overborne will. The statement by Leaming was not coercive; it was accompanied by a request that respondent not respond to it; and it was delivered hours before respondent decided to make any statement. Respondent's waiver was thus knowing and intentional.
126
The majority's contrary conclusion seems to rest on the fact that respondent "asserted" his right to counsel by retaining and consulting with one lawyer and by consulting with another. How this supports the conclusion that respondent's later relinquishment of his right not to talk in the absence of counsel was unintentional is a mystery. The fact that respondent consulted with counsel on the question whether he should talk to the police in counsel's absence makes his later decision to talk in counsel's absence better informed and, if anything, more intelligent.
127
The majority recognizes that even after this "assertion" of his right to counsel, it would have found that respondent waived his right not to talk in counsel's absence if his waiver had been express i. e., if the officers had asked him in the car whether he would be willing to answer questions in counsel's absence and if he had answered "yes." Ante, at 405. But waiver is not a formalistic concept. Waiver is shown whenever the facts establish that an accused knew of a right and intended to relinquish it. Such waiver, even if not express,5 was plainly shown here. The only other conceivable basis for the majority's holding is the implicit suggestion, ante, at 400-401, that the right involved in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), as distinguished from the right involved in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is a right not to be asked any questions in counsel's absence rather than a right not to answer any questions in counsel's absence, and that the right not to be asked questions must be waived before the questions are asked. Such wafer-thin distinctions cannot determine whether a guilty murderer should go free. The only conceivable purpose for the presence of counsel during questioning is to protect an accused from making incriminating answers. Questions, unanswered, have no significance at all. Absent coercion6 no matter how the right involved is defined an accused is amply protected by a rule requiring waiver before or simultaneously with the giving by him of an answer or the making by him of a statement.
III
128
The consequence of the majority's decision is, as the majority recognizes, extremely serious. A mentally disturbed killer whose guilt is not in question may be released. Why? Apparently the answer is that the majority believes that the law enforcement officers acted in a way which involves some risk of injury to society and that such conduct should be deterred. However, the officers' conduct did not, and was not likely to, jeopardize the fairness of respondent's trial or in any way risk the conviction of an innocent man the risk against which the Sixth Amendment guarantee of assistance of counsel is designed to protect. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). But see Massiah v. United States, supra. The police did nothing 'wrong,' let alone anything 'unconstitutional.' To anyone not lost in the intricacies of the prophylactic rules of Miranda v. Arizona, the result in this case seems utterly senseless; and for the reasons stated in Part II, supra, even applying those rules as well as the rule of Massiah v. United States, supra, the statements made by respondent were properly admitted. In light of these considerations, the majority's protest that the result in this case is justified by a 'clear violation' of the Sixth and Fourteenth Amendments has a distressing hollow ring. I respectfully dissent.
129
Mr. Justice BLACKMUN, with whom Mr. Justice WHITE and Mr. Justice REHNQUIST join, dissenting.
130
The State of Iowa, and 21 States and others, as amici curiae, strongly urge that this Court's procedural (as distinguished from constitutional) ruling in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), be re-examined and overruled. I, however, agree with the Court, ante, at 397, that this is not now the case in which that issue need be considered.
131
What the Court chooses to do here, and with which I disagree, is to hold that respondent Williams' situation was in the mold of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), that is, that it was dominated by a denial to Williams of his Sixth Amendment right to counsel after criminal proceedings had been instituted against him. The Court rules that the Sixth Amendment was violated because Detective Leaming "purposely sought during Williams' isolation from his lawyers to obtain as much incriminating information as possible." Ante at 399, and POWELL, J., concurring, ante, at 410-413. I cannot regard that as unconstitutional per se.
132
First, the police did not deliberately seek to isolate Williams from his lawyers so as to deprive him of the assistance of counsel. Cf. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). The isolation in this case was a necessary incident of transporting Williams to the county where the crime was committed.1
133
Second, Leaming's purpose was not solely to obtain incriminating evidence. The victim had been missing for only two days, and the police could not be certain that she was dead. Leaming, of course, and in accord with his duty, was "hoping to find out where that little girl was," ante, at 399, but such motivation does not equate with an intention to evade the Sixth Amendment.2 Moreover, the Court seems to me to place an undue emphasis, ante at 392, 400, and aspersion on what it and the lower courts have chosen to call the "Christian burial speech," and on Williams' "deeply religious" convictions.
134
Third, not every attempt to elicit information should be regarded as "tantamount to interrogation," ante, at 400. I am not persuaded that Leaming's observations and comments, made as the police car traversed the snowy and slippery miles between Davenport and Des Moines that winter afternoon, were an interrogation, direct or subtle, of Williams. Contrary to this Court's statement, ibid., the Iowa Supreme Court appears to me to have thought and held otherwise, State v. Williams, 182 N.W.2d 396, 403-405 (1970), and I agree. Williams, after all, was counseled by lawyers, and warned by the arraigning judge in Davenport and by the police, and yet it was he who started the travel conversations and brought up the subject of the criminal investigation. Without further reviewing the circumstances of the trip, I would say it is clear there was no interrogation. In this respect, I am in full accord with Judge Webster in his vigorous dissent, 509 F.2d 227, 234-237, and with the views implicitly indicated by Chief Judge Gibson and Judge Stephenson, who joined him in voting for rehearing en banc.
135
In summary, it seems to me that the Court is holding that Massiah is violated whenever police engage in any conduct, in the absence of counsel, with the subjective desire to obtain information from a suspect after arraignment. Such a rule is far too broad. Persons in custody frequently volunteer statements in response to stimuli other than interrogation. See, e. g., United States v. Cook, 530 F.2d 145, 152-153 (C.A.7), cert. denied, 426 U.S. 909, 96 S.Ct. 2234, 48 L.Ed.2d 835 (1976) (defendant engaged officers in conversation while being transported to magistrate); United States v. Martin, 511 F.2d 148, 150-151 (C.A.8 1975) (agent initiated conversation with suspect, provoking damaging admission); United States v. Menichino, 497 F.2d 935, 939-941 (C.A.5 1974) (incriminating statements volunteered during booking process); Haire v. Sarver, 437 F.2d 1262 (C.A.8), cert. denied, 404 U.S. 910, 92 S.Ct. 235, 30 L.Ed.2d 182 (1971) (statements volunteered in response to questioning of defendant's wife). When there is no interrogation, such statements should be admissible as long as they are truly voluntary.3
136
The Massiah point thus being of no consequence, I would vacate the judgment of the Court of Appeals and remand the case for consideration of the issue of voluntariness, in the constitutional sense, of Williams' statements, an issue the Court of Appeals did not reach when the case was before it.
137
One final word: I can understand the discomfiture the Court obviously suffers and expresses in Part IV of its opinion, ante, at 406, and the like discomfiture expressed by Justice (now United States District Judge) Stuart of the Iowa court in the dissent he felt compelled to make by this Court's precedents, 182 N.W.2d at 406. This was a brutal, tragic, and heinous crime inflicted upon a young girl on the afternoon of the day before Christmas. With the exclusionary rule operating as the Court effectuates it, the decision today probably means that, as a practical matter, no new trial will be possible at this date eight years after the crime, and that this respondent necessarily will go free. That, of course, is not the standard by which a case of this kind strictly is to be judged. But, as Judge Webster in dissent below observed, 509 F.2d, at 237, placing the case in sensible and proper perspective: "The evidence of Williams' guilt was overwhelming. No challenge is made to the reliability of the factfinding process." I am in full agreement with that observation.
1
The fact of the matter, of course, was that Detective Leaming possessed no such knowledge.
2
The opinion of the trial court denying Williams' motion to suppress is unreported.
3
Title 28 U.S.C. § 2254(d) provides:
"(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be
presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit
"(1) that the merits of the factual dispute were not resolved in the State court hearing;
"(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
"(3) that the material facts were not adequately developed at the State court hearing;
"(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
"(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
"(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
"(7) that the applicant was otherwise denied due process of law in the State court proceeding;
"(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
"And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous."
4
Whether Williams waived his constitutional rights was not, of course, a question of fact, but an issue of federal law. See discussion, infra, at 401-404.
5
The Court of Appeals did not address the District Court's ruling that Williams' statements had been made involuntarily.
6
Counsel for petitioner, in the course of oral argument in this Court, acknowledged that the "Christian burial speech" was tantamount to interrogation:
"Q: But isn't the point, really, Mr. Attorney General, what you indicated earlier, and that is that the officer wanted to elicit information from Williams
"A: Yes, sir.
"Q: by whatever techniques he used, I would suppose a lawyer would consider that he were pursuing interrogation.
"A: It is, but it was very brief." Tr. of Oral Arg. 17.
7
The Iowa trial court expressly acknowledged Williams' "right to have an attorney present during the giving of such information." See supra, at 394. The Iowa Supreme Court also expressly acknowledged Williams' "right to the presence of his counsel." See Ibid.
8
The only other significant factual difference between the present case and Massiah is that here the police had agreed that they would not interrogate Williams in the absence of his counsel. This circumstances plainly provides petitioner with no argument for distinguishing away the protection afforded by Massiah.
It is argued that this agreement may not have been an enforceable one. But we do not deal here with notions of offer, acceptance, consideration, or other concepts of the law of contracts. We deal with constitutional law. And every court that has looked at this case has found an "agreement" in the sense of a commitment made by the Des Moines police officers that Williams would not be questioned about Pamela Powers in the absence of his counsel.
9
See n. 7, supra.
10
Cf. Michigan v. Mosley, 423 U.S. 96, 110 n. 2, 96 S.Ct. 321, 329, 46 L.Ed.2d 313 (White, J., concurring in result):
(T)he reasons to keep the lines of communication between the authorities and the accused open when the accused has chosen to make his own decisions are not present when he indicates instead that he wishes legal advice with respect thereto. The authorities may then communicate with him through an attorney. More to the point, the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities' insistence to make a statement without counsel's presence may properly be viewed with skepticism.'
11
Compare, e. g., United States v. Springer, 460 F.2d 1344, 1350 (C.A.7); Wilson v. United States, 398 F.2d 331 (C.A.5); Coughlan v. United States, 391 F.2d 371 (C.A.9), with, e. g., United States v. Thomas, 474 F.2d 110, 112 (C.A.10); United States v. Springer, supra, at 1354-1355 (Stevens, J., dissenting); United States ex rel. Magoon v. Reincke, 416 F.2d 69 (C.A.2), aff'g D.C., 304 F.Supp. 1014 (Conn.). Cf. United States v. Pheaster, 544 F.2d 353 (C.A.9).
12
The District Court stated that its decision "does not touch upon the issue of what evidence, if any, beyond the incriminating statements themselves must be excluded as 'fruit of the poisonous tree.' " 375 F.Supp. 170, 185. We, too, have no occasion to address this issue, and in the present posture of the case there is no basis for the view of our dissenting Brethren, post, at 430 (White, J.); post, at 441 (Blackmun, J.), that any attempt to retry the respondent would probably be futile. While neither Williams' incriminating statements themselves nor any testimony describing his having led the police to the victim's body can constitutionally be admitted into evidence, evidence of where the body was found and of its condition might well be admissible on the theory that the body would have been discovered in any event, even had incriminating statements not been elicited from Williams. Cf. Killough v. United States, 119 U.S.App.D.C. 10, 336 F.2d 929. In the event that a retrial is instituted, it will be for the state courts in the first instance to determine whether particular items of evidence may be admitted.
13
The Court of Appeals suspended the issuance of the writ of habeas corpus for 60 days to allow an opportunity for a new trial, and further suspended its issuance pending disposition of the petition for a writ of certiorari in this Court. In affirming the judgment of the Court of Appeals, we further suspend the issuance of the writ of release from custody for 60 days from this date to allow the State of Iowa an opportunity to initiate a new trial, and judgment will be entered accordingly.
1
Before concluding that the police had engaged in interrogation, the District Court summarized the factual background:
"Detective Leaming obtained statements from Petitioner in the absence of counsel (1) after making, and then breaking, an agreement with Mr. McKnight that Petitioner would not be questioned until he arrived in Des Moines and saw Mr. McKnight; (2) after being told by both Mr. McKnight and Mr. Kelly that Petitioner was not to be questioned until he reached Des Moines; (3) after refusing to allow Mr. Kelly, whom Detective Leaming himself regarded as Petitioner's co-counsel, to ride to Des Moines with Petitioner; and (4) after being told by Petitioner that he would talk after he reached Des Moines and Mr. McKnight. By violating or ignoring these several, clear indications that Petitioner was to have counsel during interrogation, Detective Leaming deprived Petitioner of his right to counsel in a way similar to, if not more objectionable than, that utilized against the defendant in Massiah (v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964))." 375 F.Supp., at 177 (footnote omitted).
2
I tend generally to share the view that the per se application of an exclusionary rule has little to commend it except ease of application. All too often applying the rule in this fashion results in freeing the guilty without any offsetting enhancement of the rights of all citizens. Moreover, rigid adherence to the exclusionary rule in many circumstances imposes greater cost on the legitimate demands of law enforcement than can be justified by the rule's deterrent purposes. Schneckloth v. Bustamonte, 412 U.S. 218, 267, 93 S.Ct. 2041, 2068, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). I therefore have indicated, at least with respect to Fourth Amendment violations, that a distinction should be made between flagrant violations by the police, on the one hand, and technical, trivial, or inadvertent violations, on the other. Brown v. Illinois, 422 U.S. 590, 610-612, 95 S.Ct. 2254, 2265-2266, 45 L.Ed.2d 416 (1975) (concurring opinion). Here, we have a Sixth Amendment case and also one in which the police deliberately took advantage of an inherently coercive setting in the absence of counsel, contrary to their express agreement. Police are to be commended for diligent efforts to ascertain the truth, but the police conduct in this case plainly violated respondent's constitutional rights.
3
The Stone issue was not mentioned in any of the briefs, including petitioner's reply brief filed September 29, 1976 some three months after our decision in Stone was announced. The possible relevance of Stone was raised by a question from the bench during oral argument. This prompted brief comments by counsel for both parties. Tr. of Oral Arg. 26-27, 49-50. But in no meaningful sense can the issue be viewed as having been 'argued' in this case.
*
The importance of this point is emphasized by the State's refusal to permit counsel to accompany his client on the trip from Davenport to Des Moines.
1
"The criminal is to go free because the constable has blundered. . . . A room is searched against the law, and the body of a murdered man is found. . . . The privacy of the home has been infringed, and the murderer goes free." People v. Defore, 242 N.Y. 13, 21, 23-24, 150 N.E. 585, 587, 588 (1926).
The Court protests, ante, at 407 n. 12, that its holding excludes only "Williams' incriminating statements themselves (as well as) any testimony describing his having led the police to the victim's body," thus hinting that successful retrial of this palpably guilty felon is realistically possible. Even if this were all, and the corpus delicti could be used to establish the fact and manner of the victim's death, the Court's holding clearly bars all efforts to let the jury know how the police found the body. But the Court's further and remarkable statement that "evidence of where the body was found and of its condition" could be admitted only "on the theory that the body would have been discovered in any event" makes clear that the Court is determined to keep the truth from the jurors pledged to find the truth. If all use of the corpus delicti is to be barred by the Court as "fruit of the poisonous tree" under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), except on the unlikely theory suggested by the Court, the Court renders the prospects of doing justice in this case exceedingly remote.
2
Such a paternalistic rule is particularly anomalous in the Sixth Amendment context, where this court has only recently discovered an independent constitutional right of self-representation, allowing an accused the absolute right to proceed without a lawyer at trial, once he is aware of the consequences. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
3
Paradoxically, in light of the result reached, the Court acknowledges that Williams repeatedly stated: "When I get to Des Moines and see Mr. McKnight, I am going to tell you the whole story." Read in context it is plain that Williams was saying he intended to confess. The Court then goes on to hold, in effect, that Williams could not change his mind until he reached Des Moines.
4
One familiar example of this Court's unwillingness to apply the prophylactic exclusionary rule beyond its natural scope is the requirement that evidence seized in violation of the rights of another person may not be challenged by a defendant whose own rights were not invaded. Alderman v. United States, 394 U.S. 165, 174-175, 89 S.Ct. 961, 966-967, 22 L.Ed.2d 176 (1969).
Another is the rule that the "taint" of a constitutional violation may be vitiated by later events so that evidence which would not have been obtained but for the constitutional violation may yet be admissible, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); see Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
Both these limitations on the use of the exclusionary rule are inconsistent with its deterrent rationale. If courts wished to enhance the deterrent effect on law enforcement officers, all evidence whose seizure could be traced directly to any constitutional, violation would be suppressed. It is evident that our refusal to expand the rule in this fashion represents a considered balancing between "the additional benefits of extending the exclusionary rule" and "the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth." Alderman v. United States, supra, at 175, 89 S.Ct., at 967; see United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974).
5
Indeed, if this were a Fourth Amendment case our course would be clear; only last Term, in Stone v. Powell, we held that application of the exclusionary rule in federal habeas corpus has such a minimal deterrent effect on law enforcement officials that habeas relief should not be granted on the ground that unconstitutionally seized evidence was introduced at trial. Since the quantum of deterrence provided by federal habeas does not vary with the constitutional provision at issue, it appears that the Court sees fundamental, though unarticulated, differences in the exclusionary sanction when it is applied in other contexts.
6
Statements obtained in violation of Miranda have long been used for impeachment purposes. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). See also Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954).
7
Indeed, we determine whether pretrial proceedings are "critical" by asking whether counsel is there needed to protect the fairness of the trial. See United States v. Ash, 413 U.S. 300, 322, 93 S.Ct. 2568, 2580, 37 L.Ed.2d 619 (1973) (Stewart, J., concurring); Schneckloth v. Bustamonte, 412 U.S. 218, 239, 93 S.Ct. 2041, 2054, 36 L.Ed.2d 854 (1973). It is also clear that the danger of factual error was the moving force behind the counsel guarantee in such cases as United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (post-indictment lineups).
8
This is a far cry from Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Massiah's statements had no independent indicia or reliability as do respondent's. Moreover, Massiah was unaware that he was being interrogated by ruse and had not been advised of his right to counsel.
Here, as Mr. Justice BLACKMUN has noted, there was no interrogation of Williams in the sense that term was used in Massiah, Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), or Miranda. That the detective's statement appealed to Williams' conscience is not a sufficient reason to equate it to a police station grilling. It could well be that merely driving on the road and passing the intersection where he had turned off to bury the body might have produced the same result without any suggestive comments.
9
Clearly there will be many cases where evidence obtained in violation of right-to-counsel rules is inadmissible, either for reasons related to the normative purposes of the Sixth Amendment or to the deterrence of unlawful police conduct. But this is, on the Court's facts, not such a case, and it hardly furthers reasoned analysis to lump it into an undifferentiated conceptual category for reasons which do not apply to it.
1
It does not matter whether the right not to make statements in the absence of counsel stems from Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), or Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In either case the question is one of waiver. Waiver was not addressed in Massiah because there the statements were being made to an informant and the defendant had no way of knowing that he had a right not to talk to him without counsel.
2
The record does not make it crystal clear that these statements, or some of them, followed the above-quoted statements, by Detective Leaming. However, the record reveals that Leaming's statement was made not long after leaving Davenport and that respondent's statement that he would tell the whole story when they arrived in Des Moines was made 'several times.' It is reasonable to infer that respondent's statement followed that by Leaming. During some of the rest of the trip respondent asked questions of the officers about the investigation, about how they would treat him, and about a number of subjects unrelated to the case.
3
The trip was 160 miles long and was made in bad weather. Leaming's statement was made shortly after leaving Davenport. Respondent's statements about the victim's clothes were made shortly before arriving in Mitchellville, a near suburb of Des Moines.
4
Moreover, he in fact received advice of counsel on at least two occasions on the question whether he should talk to the police on the trip to Des Moines.
5
The Courts of Appeals, in administering the rule of Miranda v. Arizona, have not required an express waiver of the rights to silence and to counsel which an accused must be advised about under that case. Waiver has been found where the accused is informed of those rights, understands them, and then proceeds voluntarily to answer questions in the absence of counsel. United States v. Marchildon, 519 F.2d 337, 343 (C.A.8 1975) ("Waiver depends on no form of words, written or oral. It is to be determined from all of the surrounding circumstances. Addressing ourselves to this issue we held in Hughes v. Swenson, 452 F.2d 866, 867-868 (C.A.8 1971), that: 'The thrust of appellant's claim is that a valid waiver cannot be effective absent an expressed declaration to that effect. We are cited to no case which supports appellant's thesis and independent research discloses none. To the contrary, the Fifth, Seventh, Ninth and Tenth Circuits have held in effect that if the defendant is effectively advised of his rights and intelligently and understandingly declines to exercise them, the waiver is valid' "); United States v. Ganter, 436 F.2d 364, 370 (C.A.7 1970) ("(A)n express statement that the individual does not want a lawyer is not required if it appears that the defendant was effectively advised of his rights and he then intelligently and understandingly declined to exercise them"); United States v. James, 528 F.2d 999, 1019 (C.A.5 1976) (" 'All that the prosecution must show is that the defendant was effectively advised of his rights and that he then intelligently and understandingly declined to exercise them' "); Blackmon v. Blackledge, 541 F.2d 1070, 1072 (C.A.4 1976) ("(H)e was reasonably questioned only after having been fully informed of his rights and permitted to make a telephone call. Under such circumstances, a suspect's admission to questioning without objection and without requesting a lawyer is clearly a waiver of his right to counsel, if, indeed, he understands his rights"); United States v. Boston, 508 F.2d 1171 (C.A.2 1974); United States v. Johnson, 466 F.2d 1206 (C.A.8 1972); Mitchell v. United States, 140 U.S.App.D.C. 209, 434 F.2d 483 (1970); Bond v. United States, 397 F.2d 162 (C.A.10 1968).
There is absolutely no reason to require an additional question to the already cumbersome Miranda litany just because the majority finds another case Massiah v. United States providing exactly the same right to counsel as that involved in Miranda. In either event, the issue is, as the majority recognizes, one of the proof necessary to establish waiver. If an intentional relinquishment of the right to counsel under Miranda is established by proof that the accused was informed of his right and then voluntarily answered questions in counsel's absence, then similar proof establishes an intentional relinquishment of the Massiah right to counsel.
6
There is a rigid prophylactic rule set forth in Miranda v. Arizona that once an arrestee requests presence of counsel at questioning, questioning must cease. The rule depends on an indication by the accused that he will be unable to handle the decision whether or not to answer questions without advice of counsel, see Michigan v. Mosley, 423 U.S. 96, 110 n. 2, 96 S.Ct. 321, 323, 46 L.Ed.2d 313 (1975) (White, J., concurring), and is inapplicable to this case for two reasons. First, at no time did respondent indicate a desire not to be asked questions outside the presence of his counsel notwithstanding the fact that he was told that he and the officers would be "visiting in the car." The majority concludes, although studiously avoiding reliance on Miranda, that respondent asserted his right to counsel. This he did in some respects, but he never, himself, asserted a right not to be questioned in the absence of counsel. Second, as is noted in the dissenting opinion of Mr. Justice BLACKMUN, respondent was not questioned. The rigid prophylactic rule as the majority implicitly recognizes is designed solely to prevent involuntary waivers of the right against self-incrimination and is not to be applied to a statement by a law enforcement officer accompanied by a request by the officer that the accused make no response followed by more than an hour of silence and an apparently spontaneous statement on a subject the victim's shoes not broached in the "speech." Under such circumstances there is not even a small risk that the waiver will be involuntary.
1
Neither attorney McKnight nor attorney Kelly objected to Williams' being returned to Des Moines, although each sought assurance that he would not be interrogated. That "the entire setting was conducive to . . . psychological coercion," POWELL, J., concurring, ante, at 412, was more attributable to Williams' flight from Des Moines than to any machinations of the police. Surely the police are not to be blamed for the facts that the murder was committed on Christmas Eve and that the weather was ominous.
2
Indeed, Williams already had promised Leaming that he would tell "the whole story" when he reached Des Moines. Ante, at 392.
3
With all deference to the Court, I do not agree that Massiah regarded it as "constitutionally irrelevant" that the statements in that case were surreptitiously obtained, ante, at 400. The Massiah opinion quoted with approval the dissenting Circuit Judge's statement that "Massiah was more seriously imposed upon . . . because he did not even know that he was under interrogation by a government agent." 377 U.S., at 206, 84 S.Ct., at 1203.
| 01
|
430 U.S. 462
97 S.Ct. 1292
51 L.Ed.2d 480
SANTA FE INDUSTRIES, INC., et al., Petitioners,v.S. William GREEN et al.
No. 75-1753.
Argued Jan. 18-19, 1977.
Decided March 23, 1977.
Syllabus
Delaware's 'short-form merger' statute enables a parent company owning at least 90% of the stock of a subsidiary to merge with the subsidiary upon approval of the parent company's board of directors, and to make cash payments for the minority shareholders' shares. Though advance notice to or consent of the minority shareholders is not required, they must be notified within 10 days of the merger's effective date, and any dissatisfied minority shareholder may petition the Delaware Court of Chancery for the payment of the fair value of his shares as determined by a court-appointed appraiser subject to court review. Pursuant to that statutory procedure petitioner Santa Fe Industries, which had acquired 95% control of another company (Kirby), after obtaining independent appraisals of Kirby's assets and submitting them with financial data to a banking firm to appraise the Kirby stock's fair market value, decided to offer the minority stockholders $150 per share, which was more than the banking firm's appraisal. The minority stockholders were notified the day after the merger became effective and advised of their right to obtain an appraisal if dissatisfied with the $150 price, and were given an information statement containing relevant financial data about Kirby, the appraisals of its assets, and the banking firm's stock appraisal. Respondents, minority stockholders who objected to the merger, instead of pursuing their Delaware appraisal remedy, brought this action in District Court seeking to set aside the merger and to recover the fair value for their stock, which they claimed was at least $772 per share. Respondents alleged that the Kirby stock had been fraudulently appraised in an effort to freeze out the minority stockholders at an inadequate price, in violation of § 10(b) of the Securities Exchange Act of 1934, which makes it 'unlawful for any person . . . (t)o use or employ . . . any manipulative or deceptive device or contrivance in contravention of (Securities and Exchange Commission rules),' and Rule 10b-5 issued thereunder, which, in addition to nondisclosure and misrepresentation, prohibits any 'artifice to defraud' or any act 'which operates or would operate as a fraud or deceit.' The District Court dismissed the complaint for failure, with respect to the two aspects on which respondents' case was deemed to rest, to state a claim upon which relief could be granted: (1) With regard to the claim that actionable fraud inhered in the allegedly gross undervaluation of the minority shares, the court concluded that if 'full and fair disclosure is made, transactions eliminating minority interests are beyond the purview of Rule 10b-5,' and that respondents did not allege any nondisclosure or misrepresentation in this case. (2) With regard to the claim that the merger was undertaken without prior notice to minority shareholders, and was solely to eliminate the minority from the company and therefore lacked any justifiable business purpose, the court concluded that Rule 10b-5 did not override the Delaware corporation law provisions, which do not require a business purpose or prior notice for a short-form merger. The Court of Appeals reversed. While not disagreeing with the lower court's conclusions with respect to (1), supra, the Court of Appeals concluded that Rule 10b-5 reached 'breaches of fiduciary duty by a majority against minority shareholders without any charge of misrepresentation or lack of disclosure,' and that therefore the complaint, taken as a whole, stated a cause of action under the Rule. Held:
1. Only conduct involving manipulation or deception is reached by § 10(b) or Rule 10b-5. 'When a statute speaks so specifically in terms of manipulation and deception, . . . and when its history reflects no more expansive intent, (the Court is) quite unwilling to extend the scope of the statute . . .,' Ernst & Ernst v. Hochfelder, 425 U.S. 185, 214, 96 S.Ct. 1375, 1391, 47 L.Ed.2d 668. Pp. 471-474.
2. The Kirby merger, if carried out as alleged in respondents' complaint, was neither deceptive nor manipulative and therefore did not violate § 10(b) or Rule 10b-5. The minority shareholders were furnished with all relevant information with which to decide whether to accept the price offered for their stock or reject it and seek an appraisal in the Delaware court, and the cases relied on by respondents and the Court of Appeals in which breaches of fiduciary duty were held violative of Rule 10b-5, all of which included some element of deception, are inappropriate here where there was none. Manipulation is 'virtually a term of art when used in connection with securities markets,' Ernst & Ernst, supra, at 199, 96 S.Ct. at 1384, referring to practices that are intended to mislead investors by artificially affecting market activities, none of which was involved here. Pp. 474-477.
3. A holding that the complaint in this case alleged fraud under Rule 10b-5 would bring within the Rule a wide variety of corporate conduct traditionally left to state regulation. Absent a clear indication of congressional intent, the Court should be reluctant to federalize the substantial portion of the law of corporations that deals with transactions in securities, particularly where established state policies of corporate regulation would be overridden. Cf. Cort v. Ash, 422 U.S. 66, 78, 84, 95 S.Ct. 2080, 2087, 2090, 45 L.Ed.2d 26; Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 41, 97 S.Ct. 926, 51 L.Ed.2d 124. Pp. 477-480.
533 F.2d 1283, reversed and remanded.
William R. Glendon, New York City, for petitioners.
Sidney Bender, New York City, for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The issue in this case involves the reach and coverage of § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-51 thereunder in the context of a Delaware short-form merger transaction used by the majority stockholder of a corporation to eliminate the minority interest.
2
* In 1936, petitioner Santa Fe Industries, Inc. (Santa Fe), acquired control of 60% of the stock of Kirby Lumber Corp. (Kirby), a Delaware corporation. Through a series of purchases over the succeeding years, Santa Fe increased its control of Kirby's stock to 95%; the purchase prices during the period 1968-1973 ranged from $65 to $92.50 per share.2 In 1974, wishing to acquire 100% ownership of Kirby, Santa Fe availed itself of § 253 of the Delaware Corporation Law, known as the 'short-form merger' statute. Section 253 permits a parent corporation owning at least 90% of the stock of a subsidiary to merge with that subsidiary, upon approval by the parent's board of directors, and to make payment in cash for the shares of the minority stockholders. The statute does not require the consent of, or advance notice to, the minority stockholders. However, notice of the merger must be given within 10 days after its effective date, and any stockholder who is dissatisfied with the terms of the merger may petition the Delaware Court of Chancery for a decree ordering the surviving corporation to pay him the fair value of his shares, as determined by a court-appointed appraiser subject to review by the court. Del.Code Ann., Tit. 8, §§ 253, 262 (1975 ed. and Supp.1976).
3
Santa Fe obtained independent appraisals of the physical assets of Kirby land, timber, buildings, and machinery and of Kirby's oil, gas, and mineral interests. These appraisals, together with other financial information, were submitted to Morgan Stanley & Co. (Morgan Stanley), an investment banking firm retained to appraise the fair market value of Kirby stock. Kirby's physical assets were appraised at $320 million (amounting to $640 for each of the 500,000 shares); Kirby's stock was valued by Morgan Stanley at $125 per share. Under the terms of the merger, minority stockholders were offered $150 per share.
4
The provisions of the short-form merger statute were fully complied with.3 The minority stockholders of Kirby were notified the day after the merger became effective and were advised of their right to obtain an appraisal in Delaware court if dissatisfied with the offer of $150 per share. They also received an information statement containing, in addition to the relevant financial data about Kirby, the appraisals of the value of Kirby's assets and the Morgan Stanley appraisal concluding that the fair market value of the stock was $125 per share.
5
Respondents, minority stockholders of Kirby, objected to the terms of the merger, but did not pursue their appraisal remedy in the Delaware Court of Chancery.4 Instead, they brought this action in federal court on behalf of the corporation and other minority stockholders, seeking to set aside the merger or to recover what they claimed to be the fair value of their shares. The amended complaint asserted that, based on the fair market value of Kirby's physical assets as revealed by the appraisal included in the information statement sent to minority shareholders, Kirby's stock was worth at least $772 per share.5 The complaint alleged further that the merger took place without prior notice to minority stockholders; that the purpose of the merger was to appropriate the difference between the 'conceded pro rata value of the physical assets,' App. 103a, and the offer of $150 per share to 'freez(e) out the minority stockholders at a wholly inadequate price,' id., at 100a; and that Santa Fe, knowing the appraised value of the physical assets, obtained a 'fraudulent appraisal' of the stock from Morgan Stanley and offered $25 above that appraisal 'in order to lull the minority stockholders into erroneously believing that (Santa Fe was) generous.' Id., at 103a. This course of conduct was alleged to be 'a violation of Rule 10b-5 because defendants employed a 'device, scheme, or artifice to defraud' and engaged in an 'act, practice or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security." Ibid.6 Morgan Stanley assertedly participated in the fraud as an accessory by submitting its appraisal of $125 per share although knowing the appraised value of the physical assets.
6
The District Court dismissed the complaint for failure to state a claim upon which relief could be granted. 391 F.Supp. 849 (SDNY 1975). As the District Court understood the complaint, respondents' case rested on two distinct grounds. First, federal law was assertedly violated because the merger was for the sole purpose of eliminating the minority from the company, therefore lacking any justifiable business purpose, and because the merger was undertaken without prior notice to the minority shareholders. Second, the low valuation placed on the shares in the cash-exchange offer was itself said to be a fraud actionable under Rule 10b-5. In rejecting the first ground for recovery, the District Court reasoned that Delaware law required neither a business purpose for a short-form merger nor prior notice to the minority shareholders who the statute contemplated would be removed from the company, and that Rule 10b-5 did not override these provisions of state corporate law by independently placing a duty on the majority not to merge without prior notice and without a justifiable business purpose.
7
As for the claim that actionable fraud inhered in the allegedly gross undervaluation of the minority shares, the District Court observed that respondents valued their shares at a minimum of $772 per share, 'basing this figure on the pro rata value of Kirby's physical assets.' Id., at 853. Accepting this valuation for purposes of the motion to dismiss, the District Court further noted that, as revealed by the complaint, the physical asset appraisal, along with other information relevant to Morgan Stanley's valuation of the shares, had been included with the information statement sent to respondents within the time required by state law. It thought that if 'full and fair disclosure is made, transactions eliminating minority interests are beyond the purview of Rule 10b-5,' and concluded that the 'complaint fail(ed) to allege an omission, misstatement or fraudulent course of conduct that would have impeded a shareholder's judgment of the value of the offer.' Id., at 854. The complaint therefore failed to state a claim and was dismissed.7
8
A divided Court of Appeals for the Second Circuit reversed. 533 F.2d 1283 (1976). It first agreed that there was a double aspect to the case: first, the claim that gross undervaluation of the minority stock itself violated Rule 10b-5; and second, that 'without any misrepresentation or failure to disclose relevant facts, the merger itself constitutes a violation of Rule 10b-5' because it was accomplished without any corporate purpose and without prior notice to the minority stockholders. Id., at 1285. As to the first aspect of the case, the Court of Appeals did not disturb the District Court's conclusion that the complaint did not allege a material misrepresentation or nondisclosure with respect to the value of the stock; and the court declined to rule that a claim of gross undervaluation itself would suffice to make out a Rule 10b-5 case. With respect to the second aspect of the case, however, to the second aspect of disagreed with the District Court as to the reach and coverage of Rule 10b-5. The Court of Appeals' view was that, although the Rule plainly reached material misrepresentations and nondisclosures in connection with the purchase or sale of securities, neither misrepresentation nor nondisclosure was a necessary element of a Rule 10b-5 action; the Rule reached 'breaches of fiduciary duty by a majority against minority shareholders without any charge of misrepresentation or lack of disclosure.' Id., at 1287.8 The court went on to hold that the complaint, taken as a whole, stated a cause of action under the Rule:
9
'We hold that a complaint alleges a claim under Rule 10b-5 when it charges, in connection with a Delaware short-form merger, that the majority has committed a breach of its fiduciary duty to deal fairly with minority shareholders by effecting the merger without any justifible business purpose. The minority shareholders are given no prior notice of the merger, thus having no opportunity to apply for injunctive relief, and the proposed price to be paid is substantially lower than the appraised value reflected in the Information Statement.' Id., at 1291.
See also id., at 1289.9
10
We granted the petition for certiorari challenging this holding because of the importance of the issue involved to the administration of the federal securities laws. 429 U.S. 814, 97 S.Ct. 54, 50 L.Ed.2d 74 (1976). We reverse.
II
11
Section 10(b) of the 1934 Act makes it 'unlawful for any person . . . to use or employ . . . any manipulative or deceptive device or contrivance in contravention of (Securities and Exchange Commission rules)'; Rule 10b-5, promulgated by the SEC under § 10(b), prohibits, in addition to nondisclosure and misrepresentation, any 'artifice to defraud' or any act 'which operates or would operate as a fraud or deceit.'10 The court below construed the term 'fraud' in Rule 10b-5 by adverting to the use of the term in several of this Court's decisions in contexts other than the 1934 Act and the related Securities Act of 1933, 15 U.S.C. § 77a et seq.11 The Court of Appeals' approach to the interpretation of Rule 10b-5 is inconsistent with that taken by the Court last Term in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976).
12
Ernst & Ernst makes clear that in deciding whether a complaint states a cause of action for 'fraud' under Rule 10b-5, 'we turn first to the language of § 10(b), for '(t)he starting point in every case involving construction of a statute is the language itself." Id., at 197, 96 S.Ct., at 1383, quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J., concurring). In holding that a cause of action under Rule 10b-5 does not lie for mere negligence, the Court began with the principle that '(a)scertainment of congressional intent with respect to the standard of liability created by a particular section of the (1933 and 1934) Acts must . . . rest primarily on the language of that section,' 425 U.S., at 200, 96 S.Ct., at 1384, and then focused on the statutory language of § 10(b) '(t)he words 'manipulative or deceptive' used in conjunction with 'device or contrivance." Id., at 197, 96 S.Ct., at 1383. The same language and the same principle apply to this case.
13
To the extent that the Court of Appeals would rely on the use of the term 'fraud' in Rule 10b-5 to bring within the ambit of the Rule all breaches of fiduciary duty in connection with a securities transaction, its rejected by the Court in Ernst & Ernest, 'add a gloss to the operative language of the statute quite different from its commonly accepted meaning.' Id., at 199, 96 S.Ct., at 1383. But, as the Court there held, the language of the statute must control the interpretation of the Rule:
14
'Rule 10b-5 was adopted pursuant to authority granted the (Securities and Exchange) Commission under § 10(b). The rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law. Rather, it is "the power to adopt regulations to carry into effect the will of Congress as expressed by the statute." . . . (The scope of the Rule) cannot exceed the power granted the Commission by Congress under § 10(b).' Id., at 212-214, 96 S.Ct., at 1390-1391.12
15
The language of § 10(b) gives no indication that Congress meant to prohibit any conduct not involving manipulation or deception. Nor have we been cited to any evidence in the legislative history that would support a departure from the language of the statute.13 'When a statute speaks so specifically in terms of manipulation and deception, . . . and when its history reflects no more expansive intent, we are quite unwilling to extend the scope of the statute . . ..' Id., at 214, 96 S.Ct., at 1390. Thus the claim of fraud and fiduciary breach in this complaint states a cause of action under any part of Rule 10b-5 only if the conduct alleged can be fairly viewed as 'manipulative or deceptive' within the meaning of the statute.
III
16
It is our judgment that the transaction, if carried out as alleged in the complaint, was neither deceptive nor manipulative and therefore did not violate either § 10(b) of the Act or Rule 10b-5.
17
As we have indicated, the case comes to us on the premise that the complaint failed to allege a material misrepresentation or material failure to disclose. The finding of the District Court, undisturbed by the Court of Appeals, was that there was no 'omission' or 'misstatement' in the information statement accompanying the notice of merger. On the basis of the information provided, minority shareholders could either accept the price offered or reject it and seek an appraisal in the Delaware Court of Chancery. Their choice was fairly presented, and they were furnished with all relevant information on which to base their decision.14
18
We therefore find inapposite the cases relied upon by respondents and the court below, in which the breaches of fiduciary duty held violative of Rule 10b-5 included some element of deception.15 Those cases forcefully reflect the principle that '(s) 10(b) must be read flexibly, not technicallyand restrictively' and that the statute provides a cause of action for any plaintiff who 'suffer(s) an injury as a result of deceptive practices touching its sale (or purchase) of securities . . ..' Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 12-13, 92 S.Ct. 165, 169, 30 L.Ed.2d 128 (1971). But the cases do not support the proposition, adopted by the Court of Appeals below and urged by respondents here, that a breach of fiduciary duty by majority stockholders, without any deception, misrepresentation, or nondisclosure, violates the statute and the Rule.
19
It is also readily apparent that the conduct alleged in the complaint was not 'manipulative' within the meaning of the statute. 'Manipulation' is 'virtually a term of art when used in connection with securities markets.' Ernst & Ernst, 425 U.S., at 199, 96 S.Ct., at 1384. The term refers generally to practices, such as wash sales, matched orders, or rigged prices, that are intended to mislead investors by artificially affecting market activity. See, e. g., § 9 of the 1934 Act, 15 U.S.C. § 78i (prohibiting specific manipulative practices); Ernst & Ernst, supra, at 195, 199 n. 21, 205, 96 S.Ct., at 1382, 1384, 1386; Piper v. Chris-Craft Industries, Inc., 430 U.S., at 43, 97 S.Ct., at 950 (Rule 10b-6, also promulgated under § 10(b), is 'an antimanipulative provision designed to protect the orderlines of the securities market during distributions of stock' and 'to prevent stimulative trading by an issuer in its own securities in order to create an unnatural and unwarranted appearance of market activity'); 2 A. Bromberg, Securities Law: Fraud § 7.3 (1975); 3 L. Loss, Securities Regulation 1541-1570 (2d ed. 1961); 6 id., at 3755-3763 (Supp.1969). Section 10(b)'s general prohibition of practices deemed by the SEC to be 'manipulative' in this technical sense of artificially affecting market activity in order to mislead investors is fully consistent with the fundamental purpose of the 1934 Act "to substitute a philosophy of full disclosure for the philosophy of caveat emptor . . .." Affiliated Ute Citizens v. United States, 406 U.S. 128, 151, 92 S.Ct. 1456, 1471, 31 L.Ed.2d 741 (1972), quoting SEC v. Capital Gains Research Bureau, 375 U.S. 180, 186, 84 S.Ct. 275, 279, 11 L.Ed.2d 237 (1963). Indeed, nondisclosure is usually essential to the success of a manipulative scheme. 3 Loss, supra, at 1565. No doubt Congress meant to prohibit the full range of ingenious devices that might be used to manipulate securities prices. But we do not think it would have chosen this 'term of art' if it had meant to bring within the scope of § 10(b) instances of corporate mismanagement such as this, in which the essence of the complaint is that shareholders were treated unfairly by a fiduciary.
IV
20
The language of the statute is, we think, 'sufficiently clear in its context' to be dispositive here, Ernst & Ernst, supra, at 201, 96 S.Ct., at 1385; but even if it were not, there are additional considerations that weigh heavily against permitting a cause of action under Rule 10b-5 for the breach of corporate fiduciary duty alleged in this complaint. Congress did not expressly provide a private cause of action for violations of § 10(b). Although we have recognized an implied cause of action under that section in some circumstances, Superintendent of Insurance v. Bankers Life & Cas. Co., supra, 404 U.S. at 13 n. 9, 92 S.Ct. at 169, we have also recognized that a private cause of action under the antifraud provisions of the Securities Exchange Act should not be implied where it is 'unnecessary to ensure the fulfillment of Congress' purposes' in adopting that Act. Piper v. Chris-Craft Industries, 430 U.S., at 41, 97 S.Ct., at 949. Cf. J. I. Case Co. v. Borka, 377 U.S. 426, 431-433, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). As we noted earlier, supra, this page, the Court repeatedly has described the 'fundamental purpose' of the Act as implementing a 'philosophy of full disclosure'; once full and fair disclosure has occurred, the fairness of the terms of the transaction is at most a tangential concern of the statute. Cf. Mills v. Electric Auto-Lite Co., 396 U.S. 375, 381-385, 90 S.Ct. 616, 620-622, 24 L.Ed.2d 593 (1970). As in Cort v. Ash, 422 U.S. 66, 78, 80, 95 S.Ct. 2080, 2087, 2090, 45 L.Ed.2d 26 (1975), we are reluctant to recognize a cause of action here to serve what is 'at best a subsidiary purpose' of the federal legislation.
21
A second factor in determining whether Congress intended to create a federal cause of action in these circumstances is 'whether 'the cause of action (is) one traditionally relegated to state law . . ." piper v. Chris-Craft Industries, Inc., 430 U.S., at 40, 97 S.Ct., at 949, quoting Cort v. Ash, supra, at 78, 95 S.Ct., at 2087. The Delaware Legislature has supplied minority shareholders with a cause of action in the Delaware Court of Chancery to recover the fair value of shares allegedly undervalued in a short-form merger. See Supra, at 465-466. Of course, the existence of a particular state-law remedy is not dispositive of the question whether Congress meant of provide a similar federal remedy, but as in Cort and Piper, we conclude that 'it is entirely appropriate in this instance to relegate respondent and others in his situation to whatever remedy is created by state law.' 422 U.S., at 84, 95 S.Ct., at 2091; 430 U.S., at 41, 97 S.Ct., at 949.
22
The reasoning behind a holding that the complaint in this case alleged fraud under Rule 10b-5 could not be easily contained. It is difficult to imagine how a court could distinguish, for purposes of Rule 10b-5 fraud, between a majority stockholder's use of a short-form merger to eliminate the minority at an unfair price and the use of some other device, such as a long-form merger, tender offer, or liquidation, to achieve the same result; or indeed how a court could distinguish the alleged abuses in these going private transactions from other types of fiduciary self-dealing involving transactions in secutiries. The result would be to bring within the Rule a wide variety of corporate conduct traditionally left to state regulation. In addition to posing a 'danger of vexatious litigation which could result from a widely expanded class of plaintiffs under Rule 10b-5,' Blue Chip Stamps v. Manor Drug Stores, 421 U.S., at 740, 95 S.Ct., at 1927, this extension of the federal securities laws would overlap and quite possibly interfere with state corporate law. Federal courts applying a 'federal fiduciary principle' under Rule 10b-5 could be expected to depart from state fiduciary standards at least to the extent necessary to ensure uniformity within the federal system.16 Absent a clear indication of congressional intent, we are reluctant to federalize the substantial portion of the law of corporations that deals with transactions in securities, particularly where established state policies of corporate regulation would be overridden. As the Court stated in Cort v. Ash, supra: 'Corporations are creatures of state law, and investors commit their funds to corporate directors on the understanding that, except where federal law expressly requires certain responsibilities of directors with respect to stockholders, state law will govern the internal affairs of the corporation.' 422 U.S., at 84, 95 S.Ct., at 2091 (emphasis added).
23
We thus adhere to the position that 'Congress by § 10(b) did not seek to regulate transactions which constitute no more than internal corporate mismanagement.' Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S., at 12, 92 S.Ct., at 169. There may well be a need for uniform federal fiduciary standards to govern mergers such as that challenged in this complaint. But those standards should not be supplied by judicial extension of § 10(b) and Rule 10b-5 to 'cover the corporate universe.'17
24
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
25
So ordered.
26
Mr. Justice BRENNAN dissents and would affirm for substantially the reasons state in the majority and concurring opinions in the Court of Appeals, 533 F.2d 1283 (CA2 1976). part.
27
Like Mr. Justice STEVENS, I refrain from joining Part IV of the Court's opinion. I, too, regard that part as unnecessary for the decision in the instant case and, indeed, as exacerbating the concerns I expressed in my dissents in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 761, 95 S.Ct. 1917, 1937, 44 L.Ed.2d 539 (1975), and in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 215, 96 S.Ct. 1375, 1391, 47 L.Ed.2d 668 (1976). I, however, join the remainder of the Court's opinion and its judgment.
28
Mr. Justice STEVENS, concurring in part.
29
For the reasons stated by Mr. Justice Blackmun in his dissenting opinion in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 761, 95 S.Ct. 1917, 1937, 44 L.Ed.2d 639,1 and those stated in my dissent in Piper v. Chris-Craft Industries, 430 U.S. 1, 53, 97 S.Ct. 926, 955, 51 L.Ed.2d 124 (1977), I believe both of those cases were incorrectly decided. I foresee some danger that Part IV of the Court's opinion in this case may incorrectly be read as extending the holdings of those cases. Moreover, the entire discussion in Part IV is unnecessary to the decision of this case. Accordingly, I join only Parts I, II, and III of the Court's opinion. I would also add further emphasis to the fact that the controlling stockholders in this case did not breach any duty owed to the minority shareholders because (a) there was complete disclosure of the relevant facts, and (b) the minority are entitled to receive the fair value of their shares.2 The facts alleged in the complaint do not constitute 'fraud' within the meaning of Rule 10b-5.
1
Section 10 of the Securities Exchange Act of 1934, 15 U.S.C. § 78j, provides in relevant part:
'It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange
'(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.'
Rule 10b-5, 17 CFR § 240.10b-5 (1976), provides:
'Employment of manipulative and deceptive devices.
'It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
'(a) To employ any device, scheme, or artifice to defraud,
'(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
'(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,
'in connection with the purchase or sale of any security.'
2
App. 33a (merger information statement, considered by parties and court below as part of the amended complaint). Santa Fe controlled Kirby through its wholly owned subsidiary, Santa Fe Natural Resources, Inc., which owned the Kirby stock.
3
The merger became effective on July 31, 1974, and was accomplished in the following way. A new corporation, Forest Products, Inc., was organized as a Delaware corporation. The Kirby stock, together with cash, was transferred from Santa Fe's wholly owned subsidiary (see n. 2, supra) to Forest Products in exchange for all of the Forest Products stock. The new corporation was then merged into Kirby, with Kirby as the surviving corporation. The cash transferred to Forest Rpoducts was used to make the purchase offer for the Kirby shares not owned by the Santa Fe subsidiary.
4
On August 21, 1974, respondents petitioned for an appraisal of their Kirby stock, but they withdrew that petition on September 9 and the next day commenced this lawsuit.
5
The figure of $772 per share was calculated as follows:
'The difference of $311,000,000 ($622 per share) between the fair market value of Kirby's land and timber, alone, as per the defendants' own appraisal thereof at $320,000,000 and the $9,000,000 book value of said land and timber, added to the $150 per share, yields a pro rata share of the value of the physical assets of Kirby of at least $772 per share. The value of the stock was at least the pro rata value of the physical assets.' App. 102a.
6
The complaint also alleged a breach of fiduciary duty under state law and asserted that the federal court had both diversity and pendent jurisdiction over this claim. The District Court found an absence of complete diversity of citizenship between the plaintiffs and defendants because of the defendant Morgan Stanley and refused to exercise pendent jurisdiction because it held that the complaint failed to state a claim under the federal securities laws. 391 F.Supp. 849, 855 (SDNY 1975).
7
The District Court also based its holding on the alternative ground that the injuries alleged in the complaint were not causally related to any deception by the majority shareholder:
'Assuming arguendo that the merger information statement did not constitute adequate disclosure, the amended complaint does not demonstrate a causal connection between the alleged deception and plaintiffs' damages. Plaintiffs did not tender their shares for cancellation and payment pursuant to this merger plan. . . . From the outset, plaintiffs recognized the alleged deception and did not rely upon it.' 391 F.Supp., at 855.
8
The court concluded its discussion thus:
'Whether full disclosure has been made is not the crucial inquiry since it is the merger and the undervaluation which constituted the fraud, and not whether or not the majority determines to lay bare their real motives. If there is no valid corporate purpose for the merger, then even the most brazen disclosure of the fact to the minority shareholders in no way mitigates the fraudulent conduct.' 533 F.2d at 1292.
9
The Court of Appeals affirmed, however, the dismissal of the complaint against Morgan Stanley. As the Court of Appeals understood it, Morgan Stanley had not been charged with participating in the majority shareholder's breach of fiduciary duty; it had been involved only in evaluation of the stock and the compilation of its report with respect thereto. The contained 'no allegation that Morgan Stanley & Co. engaged in any misrepresentation or nondisclosure such as would support its liability under Rule 10b-5(2).' Ibid.
10
See n. 1, supra.
11
The Court of Appeals quoted passages from pepper v. Litton, 308 U.S. 295, 311, 60 S.Ct. 238, 245, 247, 84 L.Ed. 281 (1939) (where this Court upheld the disallowance of a bankruptcy claim of a controlling stockholder who violated his fiduciary obligation to the other stockholders), and from 1 J. Story, Equity Jurisprudence § 187 (1853); the court also cited cases that quoted the passage from Mr. Justice Story's treatise Moore v. Crawford, 130 U.S. 122, 128, 9 S.Ct. 447, 448, 32 L.Ed. 878 (1889) (a diversity suit to compel execution of a deed held in constructive trust), and SEC v. Capital Gains Research Bureau, 375 U.S. 180, 194, 84 S.Ct. 275, 284, 11 L.Ed.2d 237 (1963) (Investment Advisers Act of 1940 prohibits, as a 'fraud or deceit upon any client,' a registered investment adviser's failure to disclose to his clients his own financial interest in his recommendations). Although Capital Gains involved a federal securities statute, the Court's references to fraud in the 'equitable' sense of the term were premised on its recognition that Congress intended the Investment Advisers Act to establish federal fiduciary standards for investment advisers. See id., at 191-192, 194, 84 S.Ct., at 282-283, 284. Moreover, the fraud that the SEC sought to enjoin in Capital Gains was, in fact, a nondisclosure.
12
The case for adhering to the language of the statute is even stronger here than in Ernst & Ernst, where the interpretation of Rule 10b-5 rejected by the Court, was strongly urged by the Commission. See also Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977), and Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975) (rejecting interpretations of Rule 10b-5 urged by the SEC as Amicus curiae). By contrast, the Commission apparently has not concluded that Rule 10b-5 should be used to reach 'going private' transactions where the majority stockholder eliminates See SEC Securities Act Release No. 5567 (Feb. 6, 1975), CCH Fed.Sec.L.Rep. $80,104 (proposing Rules 13e-3A and 13e-3B dealing with 'going private' transactions, pursuant to six sections of the 1934 Act including § 10(b), but stating that the Commission 'has reached no conclusions with respect to the proposed rules'). Because we are concerned here only with § 10(b), we intimate no view as to the Commission's authority to promulgate such rules under other sections of the Act.
13
As the Court noted in Ernst & Ernst: 'Neither the intended scope of § 10(b) nor the reasons for the changes in its operative language are revealed explicitly in the legislative history of the 1934 Act, which deals primarily with other aspects of the legislation.' 425 U.S., at 202, 96 S.Ct., at 1385. The only specific reference to § 10 in the Senate Report on the 1934 Act merely states that the section was 'aimed at those manipulative and deceptive practices which have been demonstrated to fulfill no useful function.' S.Rep.No.792, 73d Cong., 2d Sess., 6 (1934).
14
In addition to their principal argument that the complaint alleges a fraud under clauses (a) and (c) of Rule 10b-5, respondents also argue that the complaint alleges nondisclosure and misrepresentation in violation of clause (b) of the Rule. Their major contention in this respect is that the majority stockholder's failure to give the minority advance notice of the merger was a material nondisclosure, even though the Delaware short-form merger statute does not require such notice. Brief for Respondents 27. But respondents do not indicate how they might have acted differently had they had prior notice of the merger. Indeed, they accept the conclusion of both courts below that under Delaware law they could not have enjoined the merger because an appraisal proceeding is their sole remedy in the Delaware courts for any alleged unfairness in the terms of the merger. Thus, the failure to give advance notice was not a material nondisclosure within the meaning of the statute or the Rule. Cf. TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976).
15
The decisions of this Court relied upon by respondents all involved deceptive conduct as part of the Rule 10b-5 violation alleged. Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972) (misstatements of material fact used by bank employees in position of market maker to acquire stock at less than fair value); Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 9, 92 S.Ct. 165, 167, 30 L.Ed.2d 128 (1971) ('seller (of bonds) was duped into believing that it, the seller, would receive the proceeds'). Cf. SEC v. Capital Gains Research Bureau, 375 U.S. 180, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963) (injunction under Investment Advisers Act of 1940 to compel registered investment adviser to disclose to his clients his own financial interest in his recommendations).
We have been cited to a large number of cases in the Courts of Appeals, all of which involved an element of deception as part of the fiduciary misconduct held to violate Rule 10b-5. E. g., Schoenbaum v. Firstbrook, 405 F.2d 215, 220 (CA2 1968) (en banc), cert. denied, 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219 (1969) (majority stockholder and board of directors 'were guilty of deceiving' the minority stockholders); Drachman v. Harvey, 453 F.2d 722, 733, 736, 737 (CA2 1972) (en banc) (Rule 10b-5 violation alleged on facts found 'indistinguishable' from Superintendent of Insurance v. Cement Corp., 507 F.2d 374 (CA2 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975) (scheme of market manipulation and merger on unfair terms, one aspect of which was misrepresentation); Pappas v. Moss, 393 F.2d 865, 869 (CA3 1968) ('if a 'deception' is required in the present context (of § 10(b) and Rule 10b-5), it is fairly found by viewing this fraud as though the 'independent' stockholders were standing in the place of the defrauded corporate entity,' where the board of directors passed a resolution containing at least two material misrepresentations and authorizing the sale of corporate stock to the directors at a price below fair market value); Shell v. Hensley, 430 F.2d 819, 825 (CA5 1970) (derivative suit alleging that corporate officers used misleading proxy materials and other reports to deceive shareholders regarding a bogus employment contract intended to conceal improper payments to the corporation president and regarding purchases by the corporation of certain securities at excessive prices); Rekant v. Desser, 425 F.2d 872, 882 (CA5 1970) (as part of scheme to cause corporation to issue Treasury shares and a promissory note for grossly inadequate consideration, corporate officers deceived shareholders by making affirmative misrepresentations in the corporation's annual report and by failling to file any such report the next year). See Recent Cases, 89 Harv.L.Rev. 1917, 1926 (1976) (stating that no appellate decision before that of the Court of Appeals in this case and in Marshel v. AFW Fabric Corp., 533 F.2d 1277 (CA2), vacated and remanded for a determination of mootness, 429 U.S. 881, 97 S.Ct. 228, 50 L.Ed.2d 162 (1976), 'had permitted a 10b-5 claim without some element of misrepresentation or nondisclosure') (footnote omitted).
16
For example, some States apparently require a 'valid corporate purpose' for the elimination of the minority interest through a short-form merger, whereas other States do not Compare Bryan v. Brock & Blevins Co., 490 F.2d 563 (CA5), cert. denied, 419 U.S. 844, 95 S.Ct. 77, 42 L.Ed.2d 72 (1974) (merger arranged by controlling stockholder for no business purpose except to eliminate 15% minority stockholder violated Georgia short-form merger statute) with Stauffer v. Standard Brands, Inc., 41 Del.Ch. 7, 187 A.2d 78 (1962) (Delaware short-form merger statute allows majority stockholder to eliminate the minority interest without any corporate purpose and subject only to an appraisal remedy). Thus to the extent that Rule 10b-5 is interpreted to require a valid corporate purpose for elimination of minority shareholders as well as a fair price for their shares, it would impose a stricter standard of fiduciary duty than that required by the law of some States.
17
Cary, Federalism and Corporate Law: Reflections Upon Delaware, 83 Yale L.J. 663, 700 (1974) (footnote omitted). Professor Cary argues vigorously for comprehensive federal fiduciary standards, but urges a 'frontal' attack by a new federal statute rather than an extension of Rule 10b-5. He writes: 'It seems anomalous to jig-saw every kind of corporate dispute into the federal courts through the securities acts as they are presently written.' Ibid. See also Note, Going Private, 84 Yale L.J. 903 (1975) (proposing the application of traditional doctrines of substantive corporate law to problems of fairness raised by 'going private' transactions such as short-form mergers).
1
See also Eason v. General Motors Acceptance Corp., 490 F.2d 654 (CA7 1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1979, 40 L.Ed.2d 312.
2
The motivation for the merger is a matter of indifference to the minority stockholders because they retain no interest in the corporation after the merger is consummated.
| 78
|
430 U.S. 482
97 S.Ct. 1272
51 L.Ed.2d 498
Claudio CASTANEDA, Sheriff, Petitioner,v.Rodrigo PARTIDA.
No. 75-1552.
Argued Nov. 9, 1976.
Decided March 23, 1977.
Syllabus
Under Texas' 'key man' system for selecting grand juries, jury commissioners are appointed by a state district judge to select prospective jurors from different portions of the county, after which the district judge proceeds to test their qualifications. A grand juror, in addition to being a citizen of the State and of the county in which he is to serve and a qualified voter in the county, must be 'of sound mind and good moral character,' be literate, have no prior felony conviction, and be under no pending indictment or other accusation. After respondent, a Mexican-American, had been convicted of a crime in a Texas District Court and had exhausted his state remedies on his claim of discrimination in the selection of the grand jury that had indicted him, he filed a habeas corpus petition in the Federal District Court, alleging a denial of due process and equal protection under the Fourteenth Amendment, because of gross underrepresentation of Mexican-Americans on the county grand juries. On the basis of the evidence before it, the District Court concluded that respondent had made out a weak prima facie case of invidious discrimination, and, on balance, the court's doubts about the reliability of population and grand jury statistics offered by respondent from census and county records, coupled with its opinion that Mexican-Americans constituted a 'governing majority' in the county, caused it further to conclude that the prima facie case was rebutted by the State, and the petition was dismissed. The Court of Appeals reversed, holding that the State had failed to rebut respondent's prima facie case. Held: Based on all the facts that bear on the grand jury discrimination issue, such as the statistical disparties (the county population was 79% Mexican-American, but, over an 11-year period, only 39% of those summoned for grand jury service were Mexican-American), the method of jury selection, and any other relevant testimony as to the manner in which the selection process was implemented, the proof offered by respondent was sufficient to demonstrate a prima facie case of intentional discrimination in grand jury selection, and the State failed to rebut such presumption by competent evidence. Pp. 492-501.
(a) None of the evidence in the record rebutted respondent's prima facie case. The State offered only the testimony of the State District Judge who had selected the jury commissioners, dealing principally with the selection of the commissioners and the instructions given them, and did not call the commissioners themselves to testify. Without evidence about the method by which the commissioners determined the other qualifications for grand jurors prior to the statutory time for testing qualifications, no inference explaining the disparity by reference to the literacy, sound mind, moral character, and criminal record qualifications can be drawn from the statistics about the population as a whole. Pp. 497-499.
(b) Nor did the District Court's 'governing majority' theory dispel the presumption of intentional discrimination. Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group. Furthermore, the relevance of a governing majority of elected officials to the grand jury selection process is questionable, and even if a 'governing majority' theory has general applicability in cases of this kind, the record in this case is inadequate to permit such an approach. Pp. 499-500.
524 F.2d 481, affirmed.
Thomas Parker Beery, McAllen, Tex., for petitioner.
David G. Hall, San Juan, Tex., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The sole issue presented in this case is whether the State of Texas, in the person of petitioner, the Sheriff of Hidalgo County, successfully rebutted respondent prisoner's prima facie showing of discrimination against Mexican-Americans in the state grand jury selection process. In his brief, petitioner, in claiming effective rebuttal, asserts:
2
'This list (of the grand jurors that indicted respondent) indicates that 50 percent of the names appearing thereon were Spanish. The record indicates that 3 of the 5 jury commissioners, 5 of the grand jurors who returned the indictment, 7 of the petit jurors, the judge presiding at the trial, and the Sheriff who served notice on the grand jurors to appear had Spanish surnames.' Brief for Petitioner 6.
3
* This Court on prior occasions has considered the workings of the Texas system of grand jury selection. See Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940). Texas employs the 'key man' system, which relies on jury commissioners to select prospective grand jurors from the community at large.1 The procedure begins with the state district judge's appointment of from three to five persons to serve as jury commissioners. Tex.Code Crim.Proc., Art. 19.01 (1966).2 The commissioners then 'shall select not less than 15 nor more than 20 persons from the citizens of different portions of the county' to compose the list from which the actual grand jury will be drawn. Art. 19.06 (Supp.1976-1977).3 When at least 12 of the persons on the list appear in court pursuant to summons, the district judge proceeds to 'test their qualifications.' Art. 19.21. The qualifications themselves are set out in Art. 19.08: A grand juror must be a citizen of Texas and of the county, be a qualified voter in the county, be 'of sound mind and good moral character,' be literate, have no prior felony conviction, and be under no pending indictment 'or other legal accusation for theft or of any felony.' Interrogation under oath is the method specified for testing the prospective juror's qualifications. Art. 19.22. The precise questions to be asked are set out in Art. 19.23, which, for the most part, tracks the language of Art. 19.08. After the court finds 12 jurors who meet the statutory qualifications, they are impaneled as the grand jury. Art. 19.26.
II
4
Respondent, Rodrigo Partida, was indicted in March 1972 by the grand jury of the 92d District Court of Hidalgo County for the crime of burglary of a private residence at night with intent to rape. Hidalgo is one of the border counties of southern Texas. After a trial before a petit jury, respondent was convicted and sentenced to eight years in the custody of the Texas Department of Corrections. He first raised his claim of discrimination in the grand jury selection process on a motion for new trial in the State District Court.4 In support of his motion, respondent testified about the general existence of discrimination against Mexican-Americans in that area of Texas and introduced statistics from the 1970 census and the Hidalgo County grand jury records. The census figures show that in 1970, the population of Hidalgo County was 181,535. United States Bureau of the Census, 1970 Census of Population, Characteristics of the Population, vol. 1, pt. 45, § 1, Table 119, p. 914. Persons of Spanish language or Spanish surname totaled 143,611. Ibid., and id., Table 129, p. 1092.5 On the assumption that all the persons of Spanish language or Spanish surname were Mexican-Americans, these figures show that 79.1% of the county's population was Mexican-American.6
5
Respondent's data compiled from the Hidalgo County grand jury records from 1962 to 1972 showed that over that period, the average percentage of Spanish-surnamed grand jurors was 39%.7 In the 2 1/2-year period during which the District Judge who impaneled the jury that indicted respondent was in charge, the average percentage was 45.5%. On the list from which the grand jury that indicted respondent was selected, 50% were Spanish surnamed. The last set of data that respondent introduced, again from the 1970 census, illustrated a number of ways in which Mexican-Americans tend to be underprivileged, including poverty-level incomes, less desirable jobs, substandard housing, and lower levels of education.8 The State offered no evidence at all either attacking respondent's allegations of discrimination or demonstrating that his statistics were unreliable in any way. The State District Court, nevertheless, denied the motion for a new trial.
6
On appeal, the Texas Court of Criminal Appeals affirmed the conviction. Partida v. State, 506 S.W.2d 209 (1974). Reaching the merits of the claim of grand jury discrimination, the court held that respondent had failed to make out a prima facie case. In the court's view, he should have shown how many of the females who served on the grand juries were Mexican-Americans married to men with Anglo-American surnames, how many Mexican-Americans were excused for reasons of age or health, or other legal reasons, and how many of those listed by the census would not have met the statutory qualifications of citizenship, literacy, sound mind, moral character, and lack of criminal record or accusation. Id., at 210-211. Quite beyond the uncertainties in the statistics, the court found it impossible to believe that discrimination could have been directed against a Mexican-American, in light of the many elective positions held by Mexican-Americans in the county and the substantial representation of Mexican-Americans on recent grand juries.9 Id., at 211. In essence, the court refused to presume that Mexican-Americans would discriminate against their own kind.
7
After exhausting his state remedies, respondent filed his petition for habeas corpus in the Federal District Court, alleging a denial of due process and equal protection, quaranteed by the Fourteenth Amendment, because of gross under-representation of Mexican-Americans on the Hidalgo County grand juries. At a hearing at which the state transcript was introduced, petitioner presented the testimony of the state judge who selected the jury commissioners who had compiled the list from which respondent's grand jury was taken. The judge first reviewed the State's grand jury selection process. In selecting the jury commissioners, the judge stated that he tried to appoint a greater number of Mexican-Americans than members of other ethnic groups. He testified that he instructed the commissioners about the qualifications of a grand juror and the exemptions provided by law. The record is silent, however, with regard to instructions dealing with the potential problem of discrimination directed against any identifiable group. The judge admitted that the actual results of the selection process had not produced grand jury lists that were 'representative of the ethnic balance in the community.'10 App. 84. The jury commissioners themselves, who were the only ones in a position to explain the apparent substantial underrepresentation of Mexican-Americans and to provide information on the actual operation of the selection process, were never called.
8
On the basis of the evidence before it, the court concluded that respondent had made out a 'bare prima facie case' of invidious discrimination with his proof of 'a long continued disproportion in the composition of the grand juries in Hidalgo County.' 384 F.Supp. 79, 90 (S.D.Tex.1974) (emphasis in original). Based on an examination of the reliability of the statistics offered by respondent, however, despite the lack of evidence in the record justifying such an inquiry, the court stated that the prima facie case was weak. The court believed that the census statistics did not reflect the true situation accurately, because of recent changes in the Hidalgo County area and the court's own impression of the demographic characteristics of the Mexican-American community. On the other hand, the court recognized that the Texas key-man system of grand jury selection was highly subjective, and was 'archaic and inefficient,' id., at 91, and that this was a factor arguing for less tolerance in the percentage differences. On balance, the court's doubts about the reliability of the statistics, coupled with its opinion that Mexican-Americans constituted a 'governing majority' in the county, caused it to conclude that the prima facie case was rebutted. The 'governing majority' theory distinguished respondent's case from all preceding cases involving similar disparities. On the basis of those findings, the court dismissed the petition.11
9
The United States Court of Appeals for the Fifth Circuit reversed. 524 F.2d 481 (1975). It agreed with the District Court that respondent had succeeded in making out a prima facie case. It found, however, that the State had failed to rebut that showing. The 'governing majority' theory contributed little to the State's case in the absence of specific proof to explain the disparity. In light of the State's abdication of its responsibility to introduce controverting evidence, the court held that respondent was entitled to prevail.
10
We granted certiorari to consider whether the existence of a 'governing majority' in itself can rebut a prima facie case of discrimination in grand jury selection, and, if not, whether the State otherwise met its burden of proof. 426 U.S. 934, 96 S.Ct. 2645, 49 L.Ed.2d 385 (1976).
III
11
A. This Court has long recognized that 'it is a denial of the equal protection of the laws to try a defendant of a particular race or color under an indictment issued by a grand jury . . . from which all persons of his race or color have, solely because of that race or color, been excluded by the State . . ..'12 Hernandez v. Texas, 347 U.S., at 477, 74 S.Ct., at 670. See Alexander v. Louisiana, 405 U.S. 625, 628, 92 S.Ct. 1221, 1224, 31 L.Ed.2d 536 (1972); Carter v. Jury Comm'n, 396 U.S. 320, 330, 90 S.Ct. 518, 523, 24 L.Ed.2d 549 (1970). See also Peters v. Kiff, 407 U.S. 493, 497, 92 S.Ct. 2163, 2165, 33 L.Ed.2d 83 (1972) (plurality opinion); Id., at 507, 92 S.Ct., at 2170 (dissenting opinion). While the earlier cases involved absolute exclusion of an identifiable group, later cases established the principle that substantial underrepresentation of the group constitutes a constitutional violation as well, if it results from purposeful discrimination. See Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); Carter v. Jury Comm'n, supra; Whitus v. Georgia, 385 U.S. 545, 552, 87 S.Ct. 643, 647, 17 L.Ed.2d 599 (1967); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950). Recent cases have established the fact that an official act is not unconstitutional solely because it has a racially disproportionate impact. Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976); see Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264-265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). Nevertheless, as the Court recognized in Arlington Heights, '(s)ometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.' Id., at 266, 97 S.Ct., at 564. In Washington v. Davis, the application of these principles to the jury cases was considered:
12
'It is also clear from the cases dealing with racial discrimination in the selection of juries that the systematic exclusion of Negroes is itself such an 'unequal application of the law . . . as to show intentional discrimination.' . . . A prima facie case of discriminatory purpose may be proved as well by the absence of Negroes on a particular jury combined with the failure of the jury commissioners to be informed of eligible Negro jurors in a community, . . . or with racially non-neutral selection procedures . . .. With a prima facie case made out, 'the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.' Alexander (v. Louisiana, 405 U.S.,) at 632, 92 S.Ct. 1221.' 426 U.S., at 241, 96 S.Ct., at 2048.
13
See Arlington Heights, supra, at 266 n. 13, 97 S.Ct., at 564.
14
Thus, in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. Hernandez v. Texas, 347 U.S., at 478-479, 74 S.Ct., at 670-671. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. Id., at 480, 74 S.Ct., at 671. See Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935). This method of proof, sometimes called the 'rule of exclusion,' has been held to be available as a method of proving discrimination in jury selection against a delineated class.13 Hernandez v. Texas, 347 U.S., at 480, 74 S.Ct., at 671. Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Washington v. Davis, 426 U.S., at 241, 96 S.Ct., at 2048; Alexander v. Louisiana, 405 U.S., at 630, 92 S.Ct., at 1225. Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case.
15
B. In this case, it is no longer open to dispute that Mexican-Americans are a clearly identifiable class. See, e. g., Hernandez v. Texas, supra. Cf. White v. Regester, 412 U.S. 755, 767, 93 S.Ct. 2332, 2340, 37 L.Ed.2d 314 (1973). The statistics introduced by respondent from the 1970 census illustrate disadvantages to which the group has been subject. Additionally, as in Alexander v. Louisiana, the selection procedure is not racially neutral with respect to Mexican-Americans; Spanish surnames are just as easily identifiable as race was from the questionnaires in Alexander or the notations and card colors in Whitus v. Georgia, supra, and in Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953).14
16
The disparity proved by the 1970 census statistics showed that the population of the county was 79.1% Mexican-American, but that, over an 11-year period, only 39% of the persons summoned for grand jury service were Mexican-American.15 This difference of 40% is greater than that found significant in Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) (60% Negroes in the general population, 37% on the grand jury lists). Since the State presented no evidence showing why the 11-year period was not reliable, we take it as the relevant base for comparison.16 The mathematical disparities that have been accepted by this Court as adequate for a prima facie case have all been within the range presented here. For example, in Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), the number of Negroes listed on the tax digest amounted to 27.1% of the taxpayers, but only 9.1% of those on the grand jury venire. The disparity was held to be sufficient to make out a prima facie case of discrimination. See Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967) (24.4% of tax lists, 4.7% of grand jury lists); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967) (19.7% of tax lists, 5% of jury list). We agree with the District Court and the Court of Appeals that the proof in this case was enough to establish a prima facie case of discrimination against the Mexican-Americans in the Hidalgo County grand jury selection.17
17
Supporting this conclusion is the fact that the Texas system of selecting grand jurors is highly subjective. The facial constitutionality of the key-man system, of course, has been accepted by this Court. See, e. g., Carter v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940). Nevertheless, the Court has noted that the system is susceptible of abuse as applied.18 See Hernandez v. Texas, 347 U.S., at 479, 74 S.Ct., at 671. Additionally, as noted, persons with Spanish surnames are readily identifiable.
18
The showing made by respondent therefore shifted the burden of proof to the State to dispel the inference of intentional discrimination. Inexplicably, the State introduced practically no evidence. The testimony of the State District Judge dealt principally with the selection of the jury commissioners and the instructions given to them. The commissioners themselves were not called to testify. A case such as Swain v. Alabama, 380 U.S., at 207, n. 4, 209, 85 S.Ct., at 828, 829, illustrates the potential usefulness of such testimony, when it sets out in detail the procedures followed by the commissioners.19 The opinion of the Texas Court of Criminal Appeals is particularly revealing as to the lack of rebuttal evidence in the record:
19
'How many of those listed in the census figures with Mexican-American names were not citizens of the state, but were so-called 'wet-backs' from the south side of the Rio Grande; how many were migrant workers and not residents of Hidalgo County; how many were illiterate and could not read and write; how many. were not of sound mind and good moral character, how many had been convicted of a felony or were under indictment or legal accusation for theft or a felony; none of these facts appear in the record.' 506 S.W.2d, at 211 (emphasis added).
20
In fact, the census figures showed that only a small part of the population reported for Hidalgo County was not native born. See n. 6, supra. Without some testimony from the grand jury commissioners about the method by which they determined the other qualifications for grand jurors prior to the statutory time for testing qualifications, it is impossible to draw any inference about literacy, sound mind and moral character, and criminal record from the statistics about the population as a whole. See n. 8, supra. These are questions of disputed fact that present problems not amenable to resolution by an appellate court. We emphasize, however, that we are not saying that the statistical disparities proved here could never be explained in another case; we are simply saying that the State did not do so in this case. See Turner v. Fouche, 396 U.S., at 361, 90 S.Ct., at 540.
21
C. In light of our holding that respondent proved a prima facie case of discrimination that was not rebutted by any of the evidence presently in the record, we have only to consider whether the District Court's 'governing majority' theory filled the evidentiary gap. In our view, it did not dispel the presumption of purposeful discrimination in the circumstances of this case. Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of as a matter of law that human beings of against other members of their group. Indeed, even the dissent of Mr. Justice POWELL does not suggest that such a presumption would be appropriate. See Post, at 514-516, n. 6, 516 n. 7. The problem is a complex one, about which widely differing views can be held, and, as such, it would be somewhat precipitate to take judicial notice of one view over another on the basis of a record as barren as this.20
22
Furthermore, the relevance of a governing majority of elected officials to the grand jury selection process is questionable. The fact that certain elected officials are Mexican-American demonstrates nothing about the motivations and methods of the grand jury commissioners who select persons for grand jury lists. The only arguably relevant fact in this record on the issue is that three of the five jury commissioners in respondent's case were Mexican-American. Knowing only this, we would be forced to rely on the reasoning that we have rejected that human beings would not discriminate against their own kind in order to find that the presumption of purposeful discrimination was rebutted. Without the benefit of this simple behavioral presumption, discriminatory intent can be rebutted only with evidence in the record about the way in which the commissioners operated and their reasons for doing so. It was the State's burden to supply such evidence, once respondent established his prima facie case. The State's failure in this regard leaves unchallenged respondent's proof of purposeful discrimination.
23
Finally, even if a 'governing majority' theory has general applicability in cases of this kind, the inadequacy of the record in this case does not permit such an approach. Among the evidentiary deficiencies are the lack of any indication of how long the Mexican-Americans have enjoyed 'governing majority' status, the absence of information about the relative power inherent in the elective offices held by Mexican-Americans, and the uncertain relevance of the general political power to the specific issue in this case. Even for the most recent time period, when presumably the political power of Mexican-Americans was at its greatest, the discrepancy between the number of Mexican-Americans in the total population and the number on the grand jury lists was substantial. Thus, under the facts presented in this case, the 'governing majority' theory is not developed fully enough to satisfy the State's burden of rebuttal.
IV
24
Rather than relying on an approach to the jury discrimination question that is as faintly defined as the 'governing majority' theory is on this record, we prefer to look at all the facts that bear on the issue, such as the statistical disparities, the method of selection, and any other relevant testimony as to the manner in which the selection process was implemented. Under this standard, the proof offered by respondent was sufficient to demonstrate a prima facie case of discrimination in grand jury selection. Since the State failed to rebut the presumption of purposeful discrimination by competent testimony, despite two opportunities to do so, we affirm the Court of Appeals' holding of a denial of equal protection of the law in the grand jury selection process in respondent's case.
25
It is so ordered.
26
Mr. Justice MARSHALL, concurring.
27
I join fully Mr. Justice BLACKMUN's sensitive opinion for the Court. I feel compelled to write separately, however, to express my profound disagreement with the views expressed by Mr. Justice POWELL in his dissent.
28
As my Brother POWELL observes, post, at 507-508, there are three categories of evidence in this case that bear on the ultimate question whether respondent 'demonstrated by a preponderance of the evidence that the State had 'deliberately and systematically den(ied) to members of (respondent's class) the right to participate as jurors in the administration of justice," post, at 517, quoting Alexander v. Louisiana, 405 U.S. 625, 628-629, 92 S.Ct. 1221, 1224, 31 L.Ed.2d 536 (1972). First, there is the statistical evidence. That evidence reveals that for at least 10 years, Mexican-Americans have been grossly underrepresented on grand juries in Hidalgo County. As Mr. Justice BLACKMUN demonstrates, ante, at 496-497, n. 17, it is all but impossible that this sizable disparity was produced by chance. The statistical evidence, then, at the very least supports an inference that Mexican-Americans were discriminated against in the choice of grand jurors.
29
Second, there is testimony concerning the grand jury selection system employed in this case. That testimony indicates that the commissioners who constructed the grand jury panels had ample opportunity to discriminate against Mexican-Americans, since the selection system is entirely discretionary and since Spanish-surnamed persons are readily identified. Indeed, for over 35 years this Court has recognized the potential for abuse inherent in the Texas grand jury selection plan. See Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940); Hill v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559 (1942); Cassell v. Texas, 339 U.S. 282, 289, 70 S.Ct. 629, 632, 94 L.Ed. 839 (1950); Hernandez v. Texas, 347 U.S. 475, 479, 74 S.Ct. 667, 671, 98 L.Ed. 839 (1954). Thus the testimony concerning the selection system, by itself, only buttresses the inference of purposeful discrimination suggested by the statistics.
30
In every other case of which I am aware where the evidence showed both statistical disparity and discretionary selection procedures, this Court has found that a prima facie case of discrimination was established, and has required the State to explain how ostensibly neutral selection procedures had produced such nonneutral results. This line of cases begins with the decision almost a century ago in Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881), and extends to our recent decision in Alexander v. Louisiana, supra.1 Yet my Brother POWELL would have us conclude that the evidence here was insufficient to establish purposeful discrimination, even though no explanation has been offered for the marked underrepresentation of Mexican-Americans on Hidalgo County grand juries.
31
The sole basis for Mr. Justice POWELL's conclusion lies in the third category of evidence presented: proof of 'the political dominance and control by the Mexican-American majority in Hidalgo County,' post, at 507-508. Like the District Court, he appears to assume without any basis in the record that all Mexican-Americans, indeed all members of all minority groups have an 'inclination to assure fairness' to other members of their group. Post, at 516. Although he concedes the possibility that minority group members will violate this 'inclination,' see post, at 514-515, n. 6, he apparently regards this possibility as more theoretical than real. Thus he would reject the inference of purposeful discrimination here absent any alternative explanation for the disparate results. I emphatically disagree.
32
In the first place, Mr. Justice POWELL's assumptions about human nature, plausible as they may sound, fly in the face of a great deal of social science theory and research. Social scientists agree that members of minority groups frequently respond to discrimination and prejudice by attempting to disassociate themselves from the group, even to the point of adopting the majority's negative attitudes towards the minority.2 Such behavior occurs with particular frequency among members of minority groups who have achieved some measure of economic or political success and thereby have gained some acceptability among the dominant group.3
33
But even if my Brother POWELL's behavioral assumptions were more valid, I still could not agree to making them the foundation for a constitutional ruling. It seems to me that especially in reviewing claims of intentional discrimination, this Court has a solemn responsibility to avoid basing its decisions on broad generalizations concerning minority groups. If history has taught us anything, it is the danger of relying on such stereotypes. The question for decision here is not how Mexican-Americans treat other Mexican-Americans, but how the particular grand jury commissioners in Hidalgo County acted. The only reliable way to answer that question, as we have said so many times,4 is for the State to produce testimony concerning the manner in which the selection process operated. Because the State failed to do so after respondent established a prima facie case of discrimination, I join the Court's opinion affirming the Court of Appeals.
34
Mr. Chief Justice BURGER, with whom Mr. Justice POWELL and Mr. Justice REHNQUIST join, dissenting.
35
In addition to the views expressed in Mr. Justice POWELL's dissent, I identify one other flaw in the Court's opinion. What the majority characterizes as a prima facie case of discrimination simply will not 'wash.' The decisions of this Court suggest, and common sense demands, that eligible population statistics, not gross population figures, provide the relevant starting point. In Alexander v. Louisiana, 405 U.S. 625, 630, 92 S.Ct. 1221, 1225, 31 L.Ed.2d 536 (1972), for example, the Court in an opinion by Mr. Justice White looked to the 'proportion of blacks in the eligible population . . ..' (Emphasis supplied.)
36
The failure to produce evidence relating to the eligible population in Hidalgo County undermines respondent's claim that any statistical 'disparity' existed in the first instance. Particularly where, as here, substantial numbers of members of the identifiable class actually served on grand jury panels, the burden rightly rests upon the challenger to show a meaningful statistical disparity. After all, the presumption of constitutionality attaching to all state procedures has even greater force under the circumstances presented here, where exactly one-half the members of the grand jury list now challenged by respondent were members of the allegedly excluded class of Mexican-Americans.
37
The Court has not previously been called upon to deal at length with the sort of statistics required of persons challenging a grand jury selection system. The reason is that in our prior cases there was little doubt that members of identifiable minority groups had been excluded in large numbers. In Alexander v. Louisiana, supra, the challenger's venire included only one member of the identifiable class and the grand jury that indicted him had none. In Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967); Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); and Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), there was at best only token inclusion of Negroes on grand jury lists. The case before us, in contrast, involves neither tokenism nor absolute exclusion; rather, the State has used a selection system resulting in the inclusion of large numbers of Spanish-surnamed citizens on grand jury lists. In this situation, it is particularly incumbent on respondent to adduce precise statistics demonstrating a significant disparity. To do that, respondent was obligated to demonstrate that disproportionately large numbers of eligible individuals were excluded systematically from grand jury service.
38
Respondent offered no evidence whatever in this respect. He therefore could not have established any meaningful case of discrimination, prima facie or otherwise. In contrast to respondent's approach, which the Court's opinion accepts without analysis, the Census Bureau's statistics for 1970 demonstrate that of the adults in Hidalgo County, 72%, not 79.1% as respondent implies, are Spanish surnamed. At the outset, therefore, respondent's gross population figures are manifestly overinclusive.
39
But that is only the beginning. Respondent offered no evidence whatever with respect to other basic qualifications for grand jury service.1 The statistics relied on in the Court's opinion suggest that 22.9% of Spanish-surnamed persons over age 25 in Hidalgo County have had no schooling at all. Ante, at 488-489, n. 8. Since one requirement of grand jurors in Texas is literacy in the English language, approximately 20% of adult-age Mexican-Americans are very likely disqualified on that ground alone.
40
The Court's reliance on respondent's overbroad statistics is not the sole defect. As previously noted, one-half of the members of respondent's grand jury list bore Mexican-American surnames. Other grand jury lists at about the same time as respondent's indictment in March 1972 were predominantly Mexican-American. Thus, with respect to the September 1971 grand jury list, 70% of the prospective grand jurors were Mexican-American. In the January 1972 Term, 55% were Mexican-American. Since respondent was indicted in 1972, by what appears to have been a truly representative grand jury, the mechanical use of Hidalgo County's practices some 10 years earlier seems to me entirely indefensible. We do not know, and on this record we cannot know, whether respondent's 1970 gross population figures, which served as the basis for establishing the 'disparity' complained of in this case, had any applicability at all to the period prior to 1970. Accordingly, for all we know, the 1970 figures may be totally inaccurate as to prior years;2 if so, the apparent disparity alleged by respondent would be increased improperly.
41
Therefore, I disagree both with the Court's assumption that respondent established a prima facie case and with the Court's implicit approval of respondent's method for showing an allegedly disproportionate impact of Hidalgo County's selection system upon Mexican-Americans.
42
Mr. Justice STEWART, dissenting.
43
In my view, the findings of the District Court in this case cannot be said to be 'clearly erroneous.' Fed.Rule Civ.Proc. 52(a); United States v. United States Gypsum Co., 333 U.S. 364, 394-395, 68 S.Ct. 525, 541-542, 92 L.Ed. 746.* Given those findings, there was no constitutional violation in the selection of the grand jury that indicted the respondent. Upon that basis I would reverse the judgment of the Court of Appeals. I add only that I am in substantial agreement with the dissenting opinions of THE CHIEF JUSTICE and Mr. Justice POWELL.
44
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
45
The evidence relevant to the issue of discrimination in this case falls into three categories: First, the statistical evidence introduced by respondent in both the state and federal proceedings which shows that the 80% Mexican-American majority in Hidalgo County was not proportionately represented on the grand jury lists; second, the testimony of the state trial judge outlining the Texas grand jury selection system as it operated in this case; and third, the facts judicially noticed by the District Court with respect to the political dominance and control by the Mexican-American majority in Hidalgo County.
46
The Court today considers it dispositive that the lack of proportional representation of Mexican-Americans on the grand jury lists in this county would not have occurred if jurors were selected from the population wholly at random. But one may agree that the disproportion did not occur by chance without agreeing that it resulted from purposeful invidious discrimination. In my view, the circumstances of this unique case fully support the District Court's finding that the statistical disparity the basis of today's decision is more likely to have stemmed from neutral causes than from any intent to discriminate against Mexican-Americans.1
47
The Court holds that a criminal defendant may demonstrate a violation of the Equal Protection Clause merely by showing that the procedure for selecting grand jurors 'resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs.' Ante, at 494. By so holding, the Court blurs the traditional constitutional distinctions between grand and petit juries, and misapplies the equal protection analysis mandated by our most recent decisions.
48
The Fifth Amendment right to a grand jury does not apply to a state prosecution. Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884). A state defendant cannot complaint if the State forgoes the institution of the grand jury and proceeds against him instead through prosecutorial information, as many States prefer to do. See Gerstein v. Pugh, 420 U.S. 103, 116-119, 95 S.Ct. 854, 864-865, 43 L.Ed.2d 54 (1975). Nevertheless, if a State chooses to proceed by grand jury it must proceed within the constraints imposed by the Equal Protection Clause of the Fourteenth Amendment. Thus in a line of cases beginning with Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), this Court has held that a criminal defendant is denied equal protection of the law if, as a result of purposeful discrimination, members of his own race are excluded from jury service. See, e. g., Alexander v. Louisiana, 405 U.S. 625, 628-629, 92 S.Ct. 1221, 1224, 31 L.Ed.2d 536 (1972); Carter v. Jury Comm'n, 396 U.S. 320, 335-337, 339, 90 S.Ct. 518, 526-527, 529, 24 L.Ed.2d 549 (1970); Cassell v. Texas, 339 U.S. 282, 287, 70 S.Ct. 629, 631, 94 L.Ed. 839 (1950); Akins v. Texas, 325 U.S. 398, 403-404, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692 (1945). As the Court points out, this right is applicable where purposeful discrimination results only in substantial rather than total exclusion of members of the defendant's class, see, e. g., Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970).
49
But a state defendant has no right to a grand jury that reflects a fair cross-section of the community.2 The right to a 'representative' grand jury is a federal right that derives not from the requirement of equal protection but from the Fifth Amendment's explicit requirement of a grand jury. That right is similar to the right applicable to state proceedings to a representative petit jury under the Sixth Amendment. See Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). To the extent that the Fifth and Sixth Amendments are applicable, a defendant need only show that the jury selection procedure 'systematically exclude(s) distinctive groups in the community and thereby fail(s) to be reasonably representative thereof.' Id., at 538, 95 S.Ct. at 702. But in a state case in which the challenge is to the grand jury, only the Fourteenth Amendment applies, and the defendant has the burden of proving a violation of the Equal Protection Clause.
50
Proof of discriminatory intent in such a case was explicitly mandated in our recent decisions in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). In Arlington Heights we said:
51
'Our decision last Term in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), made it clear that official action will not be held unconstitutional solely because it results in a racially disproportionate impact. 'Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.' Id., at 242, 96 S.Ct., at 2049. Proof of a racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. . . .' Id., at 264-265, 97 S.Ct., at 563.
52
We also identified the following standards for resolving issues of discriminatory intent or purpose:
53
'Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action whether it 'bears more heavily on one race than another,' Washington v. Davis, supra at 242, 96 S.Ct., at 2049 may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915); Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). The evidentiary inquiry is then relatively easy. But such cases are rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative, and the Court must look to other evidence.' Id., at 266, 97 S.Ct., at 564. (footnotes omitted).
54
The analysis is essentially the same where the alleged discrimination is in the selection of a state grand jury.3 This is illustrated by the recent decision in Alexander v. Louisiana, supra, where we stated:
55
'This Court has never announced mathematical standards for the demonstration of 'systematic' exclusion of blacks but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors. The progressive decimation of potential Negro grand jurors is indeed striking here, but we do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral. . . .' 405 U.S., at 630, 92 S.Ct., at 1225.
56
In Alexander, the evidence showed that 21% of the relevant community was Negro; the jury commission consisted of five members 'all of whom were white,' appointed by a white judge; the grand jury venire included 20 persons, only one of whom was a Negro (5%); and none of the 12 persons on the grand jury that indicted the defendant was Negro. Id., at 627, 628, 92 S.Ct., at 1223, 1224. This statistical array was as the Court noted 'striking.' Yet the statistics were not found, in isolation, to constitute a prima facie case. Only after determining that the selection system 'provided a clear and easy opportunity for racial discrimination' was the Court satisfied that the burden should shift to the State. Id., at 630, 92 S.Ct., at 1225.4
57
Considered together, Davis, Arlington Heights, and Alexander make clear that statistical evidence showing underrepresentation of a population group on the grand jury lists should be considered in light of 'such (other) circumstantial and direct evidence of intent as may be available.' Arlington Heights, 429 U.S., at 266, 97 S.Ct., at 564.
B
58
In this case, the following critical facts are beyond dispute: the judge who appointed the jury commissioners and later presided over respondent's trial was Mexican-American; three of the five jury commissioners were Mexican-American; 10 of the 20 members of the grand jury array were Mexican-American; 5 of the 12 grand jurors who returned the indictment, including the foreman, were Mexican-American,5 and 7 of the 12 petit jurors who returned the verdict of guilt were Mexican-American. In the year in which respondent was indicted, 52.5% of the persons on the grand jury list were Mexican-American. In addition, a majority of the elected officials in Hidalgo County were Mexican-American, as were a majority of the judges. That these positions of power and influence were so held is not surprising in a community where 80% of the population is Mexican-American. As was emphasized by District Judge Garza, the able Mexican-American jurist who presided over the habeas proceedings in the District Court, this case is unique. Every other jury discrimination case reaching this Court has involved a situation where the governing majority, and the resulting power over the jury selection process, was held by a white electorate and white officials.6
59
The most significant fact in this case, all but ignored in the Court's opinion, is that a majority of the jury commissioners were Mexican-American. The jury commission is the body vested by Texas law with the authority to select grand jurors. Under the Texas selection system, as noted by the Court, ante, at 484-485, 497, the jury commission has the opportunity to identify in advance those potential jurors who have Spanish surnames. In these circumstances, where Mexican-Americans control both the selection of jurors and the political process, rational inferences from the most basic facts in a democratic society render improbable respondent's claim of an intent to discriminate against him and other Mexican-Americans. As Judge Garza observed: 'If people in charge can choose whom they want, it is unlikely they will discriminate against themselves.' 384 F.Supp. 79, 90.
60
That individuals are more likely to discriminate in favor of, than against, those who share their own identifiable attributes is the premise that underlies the cases recognizing that the criminal defendant has a personal right under the Fourteenth Amendment not to have members of his own class excluded from jury service. Discriminatory exclusion of members of the defendant's class has been viewed as unfairly excluding persons who may be inclined to favor the defendant. See Strauder v. West Virginia, 100 U.S. at 309, 25 L.Ed. 664. Were it not for the perceived likelihood that jurors will favor defendants of their own class, there would be no reason to suppose that a jury selection process that systematically excluded persons of a certain race would be the basis of any legitimate complaint by criminal defendants of that race. Only the individuals excluded from jury service would have a personal right to complain.
61
In Akins v. Texas, where apparently no Negro was on the jury commission and only 1 of 16 was on the jury panel, the Court emphasized the high threshold of proof required to brand officers of the court with discriminatory intent:
62
'An allegation of discriminatory practices in selecting a grand jury panel challenges an essential element of proper judicial procedure the requirement of fairness on the part of the judicial arm of government in dealing with persons charged with criminal offenses. It cannot lightly be concluded that officers of the courts disregard this accepted standard of justice.' 325 U.S., at 400-401, 65 S.Ct., at 1278.
63
With all respect, I am compelled to say that the Court today has 'lightly' concluded that the grand jury commissioners of this county have disregarded not only their sworn duty but also their likely inclination to assure fairness to Mexican-Americans.7
C
64
It matters little in this case whether such judicially noticeable facts as the composition of the grand jury commission are viewed as defeating respondent's prima facie case at the outset or as rebutting it after it was established by statistical evidence. The significance of the prima facie case is limited to its effect in shifting the burden of going forward to the State. Once the State has produced evidence either by presenting proof or by calling attention to facts subject to judicial notice the only question is whether the evidence in the record is sufficient to demonstrate deliberate and systematic discrimination in the jury selection process.
65
Here, respondent produced statistics showing that Mexican-Americans while substantially represented on the grand jury lists were not represented in numbers proportionate to their share of the total population. The State responded by presenting the testimony of the judge who appointed the grand jury commissioners. Other facts, such as the presence of Mexican-Americans in a majority of the elective positions of the county, entered the record through judicial notice. The testimony, together with the facts noted by the District Court, sufficed to satisfy the State's burden of production even assuming that respondent's evidence was sufficient to give rise to such a burden. Accordingly, at the close of the evidence, the question for the District Court was whether respondent had demonstrated by a preponderance of the evidence that the State had 'deliberately and systematically den(ied) to members of (respondent's class) the right to participate as jurors in the administration of justice.' Alexander, 405 U.S., at 628-629, 92 S.Ct., at 1224. The District Court found that the judge and jury commissioners had not intentionally discriminated against Mexican-Americans. 384 F.Supp., at 90. At the very least, that finding was not clearly erroneous.8
66
The Court labels it 'inexplicable' that the State introduced only the testimony of the state trial judge. Ante, at 498. Perhaps the State fairly may be faulted for not presenting more evidence than it did. But until today's decision one may doubt whether many lawyers, familiar with our cases, would have thought that respondent's statistics, under the circumstances of this case and prevailing in Hidalgo County, were even arguably sufficient to establish deliberate and systematic discrimination.
67
There is for me a sense of unreality when Justices here in Washington decide solely on the basis of inferences from statistics that the Mexican-Americans who control the levers of power in this remote border county are manipulating them to discriminate 'against themselves.' In contrast, the judges on the scene, the state judge who appointed the jury commissioners and presided over respondent's trial and the United States District Judge both Mexican-Americans and familiar with the community perceived no basis for respondent's claim of invidious discrimination.
68
It seems to me that the Court today, in rejecting the District Court's finding that no such discrimination took place, has erred grievously. I would reinstate the judgment of the District Court.
1
The other principal state mode of juror selection is a random method similar to that used in the federal system. See 28 U.S.C. § 1864. See generally Sperlich & Jaspovice, Grand Juries, Grand Jurors and the Constitution, 1 Hastings Const.L.Q. 63, 68 (1974).
2
During the time period covered by this case, the statute was amended to omit the requirement that the commissioners be freeholders in the county. 1971 Tex.Gen.Laws, c. 131, § 1. That change has no bearing on the issues before us.
3
Prior to 1965, the law directed the commissioners to select 'sixteen men.' The legislature amended the statute that year to substitute the words 'twenty persons' for 'sixteen men.' 1965 Tex.Gen.Laws, c. 722, p. 317. In 1967, the law was amended again to provide the present range of from 15 to 20 persons. 1967 Tex.Gen.Laws, c. 515, § 1. These changes in the number of persons required to be on the list account for the jump, from 16 to 20 in the grand jury list statistics set forth in n. 7, infra.
4
In the state courts and in the federal courts on habeas, the State argued that respondent's challenge was not timely raised as a matter of state procedure, and therefore that he waived any complaint of this kind that he might have. Since the Texas courts considered the claim on its merits, however, we are free to do so here. See Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964); cf. Francis v. Henderson, 425 U.S. 536, 542 n. 5, 96 S.Ct. 1708, 1711, 48 L.Ed.2d 149 (1976). Furthermore, petitioner abandoned the waiver point in his petition for certiorari.
5
For our purposes, the terms 'Spanish-surnamed' and 'Mexican-American' are used as synonyms for the census designation 'Persons of Spanish Language or Spanish Surname.' Persons of Spanish language include both those whose mother tongue is Spanish and all other persons in families in which the head of the household or spouse reported Spanish as the mother tongue. Persons of Spanish surname, as the census uses that term, are determined by reference to a list of 8,000 Spanish surnames compiled by the Immigration and Naturalization Service. For Texas, social and economic characteristics are presented for persons of Spanish language combined with all other persons of Spanish surname in the census reports. United States Bureau of the Census, 1970 Census of Population, Characteristics of the Population, vol. 1, pt. 45, § 2, App. B.
6
At oral argument, counsel for petitioner appears to have suggested that the presence of illegal aliens who have Spanish surnames might inflate the percentage of Mexican-Americans in the countyhs population. Tr. of Oral Arg. 10-12. We cannot agree that the presence of noncitizens makes any practical difference. Table 119 of the census breaks down the 181,535 people who composed the total county population into three groups: native of native parentage, native of foreign parentage, and foreign born. The only persons as to whom the assumption of noncitizenship would be logically sustainable are the foreign born. Even for them, it is probable that some were naturalized citizens. Furthermore, only 22,845 persons were in the 'foreign born' category. If those persons are excluded from the population of the county, the total becomes 158,690. Assuming that every foreign-born person was counted as a Spanish-surnamed person (an assumption that favors the State), the total number of Mexican-Americans is reduced from 143,611 to 120,766. Using these adjusted figures, Mexican-Americans constitute 76.1% of the county's population, a figure only 3%, and thus negligibly, smaller than the one used throughout this litigation. For consistency, we shall continue to refer to the population figures for the entire county, particularly since the State has not shown why those figures are unreliable.
7
The statistics for grand jury composition can be organized as follows:
Year No. persons on Av. No. Spanish Percentage
grand jury list surnamed per list Spanish surnamed
1962 16 6 37.5%
1963 16 5.75 35.9%
1964 16 4.75 29.7%
1965 16.2 5 30.9%
1966 20 7.5 37.5%
1967 20.25 7.25 35.8%
1968 20 6.6 33%
1969 20 10 50%
1970 20 8 40%
1971 20 9.4 47%
1972 20 10.5 52.5%
Of the 870 persons who were summoned to serve as grand jurors over the 11-year period, 339, or 39%, were Spanish surnamed. See table showing Hidalgo County grand jury panels from 1962 to 1972, App. 17-18.
8
At oral argument, counsel for petitioner suggested that the data regarding educational background explained the discrepancy between the percentage of Mexican-Americans in the total population and the percentage on the grand jury lists. Tr. of Oral Arg. 8. For a variety of reasons, we cannot accept that suggestion. First, under the Texas method of selecting grand jurors, qualifications are not tested until the persons on the list appear in the District Court. Prior to that time, assuming an unbiased selection procedure, persons of all educational characteristics should appear on the list. If the jury commissioners actually exercised some means of winnowing those who lacked the ability to read and write, it was incumbent on the State to call the commissioners and to have them explain how this was done. In the absence of any evidence in the record to this effect, we shall not assume that the only people excluded from grand jury service were the illiterate.
Second, it is difficult to draw valid inferences from the raw census data, since the data are incomplete in some places and the definition of 'literacy' would undoubtedly be the subject of some dispute in any event. The State's failure to discuss the literacy problem at any point prior to oral argument compounds the difficulties. One gap in the data occurs with respect to the younger persons in the jury pool. The census reports for educational background cover only those who are 25 years of age and above. Yet the only age limitation on eligibility for grand jury service is qualification to vote. Tex.Code Crim.Proc., Art. 19.08 (Supp.1976-1977). During the period to which the census figures apply, a person became qualified to vote at age 21. Tex.Elec.Code, Art. 5.01 (1967). (In 1975, Art. 5.01 was amended to give the franchise to all persons 18 and over. 1975 Tex.Gen.Laws, c. 682, § 3.) It is not improbable that the educational characteristics of persons in the younger age group would prove to be favorable to Mexican-Americans.
Finally, even assuming that the statistics for persons age 25 and over are sufficiently representative to be useful, a significant discrepancy still exists between the number of Spanish-surnamed people and the level of representation on grand jury lists. Table 83 of the 1970 census shows that of a total of 80,049 persons in that age group, 13,205 have no schooling. (Data for McAllen-Pharr-Edinburg Standard Metropolitan Statistical Area. This SMSA is identical to Hidalgo County.) Table 97 shows that of the 55,949 Spanish-surnamed persons in the group, 12,817 have no schooling. This means that of the 24,100 persons of all other races and ethnic groups,
388 have no schooling. Translated into percentages, 22.9% of the Spanish-surnamed persons have no schooling, and 1.6% of the others have no schooling. This means that 43,132 of the Spanish-surnamed persons have some schooling and 23,712 of the others have some schooling. The Spanish-surnamed persons thus represent 65% of the 66,844 with some schooling, and the others 35%. The 65% figure still creates a significant disparity when compared to the 39% representation on grand juries shown over the 11-year period involved here.
The suggestion is made in the dissenting opinion of The Chief Justice, post, at 504-506, that reliance on eligible population figures and allowance for literacy would defeat respondent's prima facie showing of discrimination. But the 65% to 39% disparity between Mexican-Americans over the age of 25 who have some schooling and Mexican-Americans represented on the grand jury venires takes both of The Chief Justice's concerns into account. Statistical analysis, which is described in more detail in n. 17, infra, indicates that the discrepancy is significant. If one assumes that Mexican-Americans constitute only 65% of the jury pool, then a detailed calculation reveals that the likelihood that so substantial a discrepancy would occur by chance is less than 1 in 10 50.
We prefer not to rely on the 65% to 39% disparity, however, since there are so many implicit assumptions in this analysis, and we consider it inappropriate for us, as an appellate tribunal, to undertake this kind of inquiry without a record below in which those assumptions were tested. We rest, instead, on the fact that the record does not show any way by which the educational characteristics are taken into account in the compilation of the grand jury lists, since the procedure established by the State provides that literacy is tested only after the group of 20 are summoned.
9
The court noted that the foreman of the grand jury that indicted respondent was Mexican-American, and that 10 of the 20 summoned to serve had Spanish surnames. Seven of the 12 members of the petit jury that convicted him were Mexican-American. In addition, the state judge who presided over the trial was Mexican-American, as were a number of other elected officials in the county.
10
The Federal District Judge observed, during the state judge's testimony, that the selection process for grand jurors in Hidalgo County typically resulted in a progressive reduction of the number of Mexican-Americans involved at each stage. See Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). For example, said the court, if 60% of the jury commissioners were Mexican-American, the jury panel might be only 55%, and the actual grand jury only 43%. The court speculated that the reason for this might be cultural. App. 84-85.
11
The court suggested that the actual discrimination operating might be economic. The jury commissioners were from the higher socio-economic classes, and they tended to select prospective jurors from among their peers. Consequently, the number of Mexican-Americans was disproportionately low, since they were concentrated at the lower end of the economic scale. We find it unnecessary to decide whether a showing of simple economic discrimination would be enough to make out a prima facie case in the absence of other evidence, since that case is not before us. Cf. Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946).
12
Cases in this Court holding unconstitutional discriminatory selection procedures in the grand jury context include Alexander v. Louisiana, supra; Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417 (1904); Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839 (1900); and Bush v. Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 (1883).
13
The idea behind the rule of exclusion is not at all complex. If a disparity is sufficiently large, then it is unlikely that it is due solely to chance or accident, and, in the absence of evidence to the contrary, one must conclude that racial or other class-related factors entered into the selection process. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266 n. 13, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976); Eubanks v. Louisiana, 356 U.S., at 587, 78 S.Ct., at 973; Smith v. Texas, 311 U.S., at 131, 61 S.Ct., at 165; Cf. n. 17, infra.
14
The dissenters argue that the subjectivity of the system cuts in favor of the State where those who control the selection process are members of the same class as the person claiming discrimination. The fact remains, however, that the class to which respondent belongs was substantially underrepresented on the grand jury lists of Hidalgo County. The dissenters' argument here is another aspect of the 'governing majority' theory, see Part III-C infra; under the circumstances presented in this case, that theory does not dispel the presumption of purposeful discrimination created by the combined force of the statistical showing and the highly subjective method of selection.
15
Since the 1960 census did not compile separate statistics for Spanish-surnamed persons, it is impossible to ascertain whether the percentage of Mexican-Americans in the county changed appreciably over the period of time at issue. We therefore are forced to rely on the assumption that the 79.1% figure remained constant.
16
Statistical analysis of the grand jury lists during the 2 1/2-year tenure of the State District Judge who selected the commissioners in respondent's case reveals that a significant disparity existed over this time period as well. See n. 17, infra. Thus, the District Court's assumption that reference to a shorter time period would show that the prima facie case of discrimination could not be proved was unwarranted.
17
If the jurors were drawn randomly from the general population, then the number of Mexican-Americans in the sample could be modeled by a binomial distribution. See Finkelstein, The Application of Statistical Decision Theory to the Jury Discrimination Cases, 80 Harv.L.Rev. 338, 353-356 (1966). See generally P. Hoel, Introduction to Mathematical Statistics 58-61, 79-86 (4th ed. 1971); F. Mosteller, R. Rourke, & G. Thomas, Probability with Statistical Applications 130-146, 270-291 (2d ed. 1970). Given that 79.1% of the population is Mexican-American, the expected number of Mexican-Americans among the 870 persons summoned to serve as grand jurors over the 11-year period is approximately 688. The observed number is 339. Of course, in any given drawing some fluctuation from the expected number is predicted. The important point, however, is that the statistical model shows that the results of a random drawing are likely to fall in the vicinity of the expected value. See F. Mosteller, R. Rourke, & G. Thomas, supra, at 270-290. The measure of the predicted fluctuations from the expected value is the standard deviation, defined for the binomial distribution as the square root of the product of the total number in the sample (here 870) times the probability of selecting a Mexican-American (0.791) times the probability of selecting a non-Mexican-American (0.209). Id., at 213. Thus, in this case the standard deviation is approximately 12. As a general rule for such large samples, if the difference between the expected value and the observed number is greater than two or three standard deviations, then the hypothesis that the jury drawing was random would be suspect to a social scientist. The 11-year data here reflect a difference between the expected and observed number of Mexican-Americans of approximately 29 standard deviations. A detailed calculation reveals that the likelihood that such a substantial departure from the expected value would occur by chance is less than 1 in 10140.
The data for the 2 1/2-year period during which the State District Judge supervised the selection process similarly support the inference that the exclusion of Mexican-Americans did not occur by chance. Of 220 persons called to serve as grand jurors, only 100 were Mexican-Americans. The expected Mexican-American representation is approximately 174 and the standard deviation, as calculated from the binomial model, is approximately six. The discrepancy between the expected and observed values is more than 12 standard deviations. Again, a detailed calculation shows that the likelihood of drawing not more than 100 Mexican-Americans by chance is negligible, being less than 1 in 1025.
18
It has been said that random selection methods similar to the federal system would probably avoid most of the potential for abuse found in the key-man system. See Sperlich & Jaspovice, supra, n. 1.
19
This is not to say, of course, that a simple protestation from a commissioner that racial considerations played no part in the selection would be enough. This kind of testimony has been found insufficient on several occasions. E. g., Alexander v. Louisiana, 405 U.S., at 632, 92 S.Ct., at 1226; Hernandez v. Texas, 347 U.S. 475, 481, 74 S.Ct. 667, 671, 98 L.Ed. 866 (1954); Norris v. Alabama, 294 U.S. 587, 598, 55 S.Ct. 579, 583, 79 L.Ed 1074 (1935). Neither is the State entitled to rely on a presumption that the officials discharged their sworn duties to rebut the case of discrimination. Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967).
20
This is not a case where a majority is practicing benevolent discrimination in favor of a traditionally disfavored minority, although that situation illustrates that motivations not immediately obvious might enter into discrimination against 'one's own kind.'
1
See also Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Hale v. Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050 (1938); Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967); Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970).
In Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945), the statistical evidence involved only two grand jury panels; in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the statistical disparity was small, and the methods of selection were explained.
2
G. Allport, The Nature of Prejudice 150-153 (1954); A. Rose, The Negro's Morale 85-95 (1949); G. Simpson & J. Yinger, Racial and Cultural Minorities 192-195, 227, 295 (4th ed. 1972); Bettelheim, Individual and Mass Behavior in Extreme Situations, 38 J. Abnormal & Social Psych. 417 (1943); cf. Brown v. Board of Education, 347 U.S. 483, 494, and n. 11, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954) (noting the impact on sense of self of de jure segregation in schools).
3
E. Frazier, Black Bourgeoisie 213-216 (1957); Simpson & Yinger, supra, at 209; A. Kardiner & L. Ovesey, The Mark of Oppression 313-316 (1962); Lewin, Self-Hatred Among Jews, 4 Contemporary Jewish Record 219 (1941).
4
E. g., Norris v. Alabama, supra, at 592, 55 S.Ct., at 581; Pierre v. Louisiana, supra, at 361, 59 S.Ct., at 540; Alexander v. Louisiana, 405 U.S., at 631, 92 S.Ct., at 1225.
1
The burden of establishing a prima facie case obviously rested on respondent. It will not do to produce patently overinclusive figures and thereby seek to shift the burden to the State. Cf. ante, at 486-487, n. 6, 488-489, n. 8. Rather, a prima facie case is established only when the challenger shows a disparity between the percentage of minority persons in the eligible population and the percentage of minority individuals on the grand jury.
2
Indeed, Judge Reynaldo Garza in this case referred to Hidalgo County as 'rapidly changing' and as experiencing 'rapid growth.'
*
The 'clearly erroneous' standard applies to the review of facts found by a district court in a habeas corpus proceeding. Wade v. Mayo, 334 U.S. 672, 683-684, 68 S.Ct. 1270, 1275-1276, 92 L.Ed. 1647.
1
A strong case may be made that claims of grand jury discrimination are not cognizable on federal habeas corpus after Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). In Stone we held that 'where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.' Id., at 494, 96 S.Ct., at 3052 (footnotes omitted). Unlike the prisoner in Stone, who could complain that his conviction rested on evidence tainted by Fourth Amendment violations and could ask for a new trial with that evidence excluded, the prisoner in this case challenges only the now moot determination by the grand jury that there was sufficient cause to proceed to trial. He points to no flaw in the trial itself. As in Stone, the incremental benefit of extending habeas corpus as a means of correcting unconstitutional grand jury selection procedures might be viewed as 'outweighed by the acknowledged costs to other values vital to a rational system of criminal justice.' Ibid.
But as this issue was not addressed below and was not briefed or argued in this Court, it would be inappropriate to resolve it in this case.
2
It may be that nondiscriminatory methods of selection will, over time, result in a representative grand jury. See Carter v. Jury Comm'n, 396 U.S. 320, 330, 90 S.Ct. 518, 523, 24 L.Ed.2d 549 (1970). But the Fourteenth Amendment does not mandate that result. Nothing would prevent a State for example, from seeking to assure informed decisionmaking by requiring that all grand jurors be lawyers familiar with the criminal law; and if that requirement should result in substantial underrepresentation on grand juries of some segments of the community in some areas of the State, the Fourteenth Amendment would not render the selection process unconstitutional.
3
Although Davis and Arlington Heights make clear that proof of discriminatory intent is required and that proof of impact or effect alone is not sufficient, we did recognize in Arlington Heights that a lesser burden may be appropriate in the context of jury selection. 'Because of the nature of the jury-selection task . . . we have permitted a finding of constitutional violation even when the statistical pattern does not approach the extremes of Yick Wo or Gomillion.' 429 U.S., at 266 n. 13, 97 S.Ct., at 564. As one illustration, we cited Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). that Negroes constituted 60% of the general population and 37% of those included in the grand jury list. The Court found that the disparity between those figures was not so 'insubstantial' as to foreclose corrective action by a federal court. Id., at 359, 90 S.Ct., at 539. But the Court did not view the statistics in isolation. Turner was not a criminal case; it involved instead Georgia's peculiar system of appointing the county board of education. The circuit judge appointed jury commissioners, who in turn selected the grand jury. The grand jury, in turn, selected the board of education. At every layer of this system white citizens were in total control. Even though all of the students in the county schools were Negro, every white pupil having transferred elsewhere, all of the members of the board of education were white, as were all of the members of the jury commission. The District Court had found that, until the suit was instituted, 'Negroes had been systematically excluded from the grand juries through token inclusion.' Id., at 352, 90 S.Ct., at 536. It was against this background of pervasive discrimination that the Court found that even a new grand jury list with 37% Negro representation was the product of continued, purposeful discrimination.
By contrast, in Carter v. Jury Comm'n, supra, at 338-339, 90 S.Ct., at 528, isolated proof that for 12 years no Negro had been appointed to the jury commission of a predominantly Negro county was found insufficient, standing alone, to establish discriminatory intent.
4
The Court's reliance on the 'opportunity for discrimination' noted in Alexander, ante, at 495, 497, is clearly misplaced. The Court has held repeatedly that the Texas system of selecting grand jurors by the use of jury commissioners is 'fair on its face and capable of being utilized without discrimination.' Hernandez v. Texas, 347 U.S. 475, 478-479, 74 S.Ct. 667, 671, 98 L.Ed. 866 (1954); accord, Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940). The 'subjectivity' of the selection system cuts in favor of the State where, as here, those who control the selection process are members of the same class as the person claiming discrimination. See text, infra, at 515-516.
Apart from Alexander and Turner, see n. 3, supra, this Court has sustained claims of grand jury discrimination in two situations. Most of the cases involve total exclusion of minorities from participation on grand juries: Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955) (no Negro jurors in 18 years); Hermandez v. Texas, supra (no Mexican-American jurors in 25 years); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947) (no Negro jurors in 30 years); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942) (no Negro grand jurors in 16 years or more); Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939) (no Negro grand jurors in 20 years); Hale v. Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050 (1938) (no Negro jurors); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935) (no Negro jurors in a 'long number' of years); Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417 (1904) (no Negro jurors); Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839 (1900) (no Negro jurors); Bush v. Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 (1883) (no Negro jurors); Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881) (no Negro jurors); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880) (no Negro jurors). The remainder of the cases involve severe limitation of a minority's participation by token inclusion: Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967) (Negroes constituting 24.4% of the taxpayers limited to 4.7% of those on the grand jury list); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967) (Negroes constituting 19.7% of the taxpayers limited to 5% of those on the jury list); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) (Negroes constituting 27.1% of the taxpayers limited to 9.1% of the grand jury venire); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964) (one Negro juror in 24 years); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958) (one Negro juror in 18 years); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950) (limitation of one Negro juror on each panel); Smith v. Texas, supra (five Negro grand jurors in a 7-year period).
5
The District Court noted that the number of Mexican-Americans on the grand jury might have been higher had it not been for the inability of the sheriff, a Mexican-American, to locate four of the original members of the array who were Mexican-American. 384 F.Supp. 79, 83. Under Texas law, 9 of the 12 grand jurors must concur before an indictment can be presented. Tex.Code Crim.Proc., Art. 20.19 (1966).
6
I do not suggest, of course, that the mere fact that Mexican-Americans constitute a majority in Hidalgo County is dispositive. There are many communities in which, by virtue of historical or other reasons, a majority of the population may not be able at a particular time to control or significantly influence political decisions or the way the system operates. See Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). But no one can contend seriously that Hidalgo County is such a community. The classic situation in which a 'minority group' may suffer discrimination in a community is where it is 'relegated to . . . a position of political powerlessness.' San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973). Here the Mexican-Americans are not politically 'powerless'; they are the majoritarian political element of the community, with demonstrated capability to elect and protect their own.
Nor do I suggest that persons in positions of power can never be shown to have discriminated against other members of the same ethnic or racial group. I would hold only that respondent's statistical evidence, without more, is insufficient to prove a claim of discrimination in this case.
7
I agree with Mr. Justice MARSHALL, ante, at 504, that stereotypes concerning identifiable classes in our society have no place in the decisions of this Court. For that reason, I consider it inappropriate to characterize the Mexican-American majority in Hidalgo County as a 'minority group' and on that basis to suggest that these Mexican-Americans may have 'adopt(ed) the majority's negative attitudes towards the minority.' Ante, at 503. This type of speculation illustrates the lengths to which one must go to buttress a holding of purposeful discrimination that otherwise is based solely on a lack of proportional representation.
8
Nothing in this case remotely resembles the stark discrimination in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), and Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Nor do the statistics in this case approach the degree of exclusion that has characterized the cases in which we have previously found grand jury discrimination. See n. 4, supra. In this case, in the year in which the respondent was indicted, 52.5% of the persons on the grand jury lists were Mexican-American. Ante, at 487 n. 7. In its preoccupation with the disparity of representation of Mexican-Americans in the total population and on the grand jury lists, the Court loses sight of the constitutional standard. Respondent has no right to 'proportional representation' of Mexican-Americans, Carter v. Jury Comm'n, 396 U.S., at 339, 90 S.Ct., at 528. He has only the right 'to require that the State not deliberately and systematically deny to (Mexican-Americans) the right to participate as jurors in the administration of justice.' Alexander, 405 U.S., at 628-629, 92 S.Ct., at 1224.
| 12
|
430 U.S. 519
97 S.Ct. 1305
51 L.Ed.2d 604
Joseph W. JONES, as Director of the County of Riverside, California, Department of Weights and Measures, Petitioner,v.The RATH PACKING COMPANY et al.
No. 75-1053.
Argued Dec. 6-7, 1976.
Decided March 29, 1977.*
Rehearing Denied May 16, 1977.
See 431 U.S. 925, 97 S.Ct. 2201.
Syllabus
Section 12211 of the California Business and Professions Code provides that 'the average weight or measure of the packages or containers in a lot of any. . . commodity sampled shall not be less, at the time of sale or offer for sale, than the net weight or measure stated upon the package.' Article 5, § 2930 et seq., of Title 4 of the California Administrative Code in implementing § 12211 requires a statistical sampling process for determining the average net weight of a lot, which implicitly allows for variations from stated weight caused by unavoidable deviations in the manufacturing process but makes no allowance for loss of weight resulting from moisture loss during the course of good distribution practice. Petitioner county Director of Weights and Measures, pursuant to § 12211, ordered removed from sale becon packaged by respondent packing company and flour packaged by respondent millers after he had determined under Art. 5 that the packages were contained in lot whose average net weights were less than the net weights stated on the packages. Respondent packing company's bacon is also subject to inspection under the Federal Meat Inspection Act (FMIA), as amended by the Wholesome Meat Act, which requires a meat or a meat product package to bear a label showing, inter alia, an accurate statement of the quantity of the contents in terms of weight, but permits 'reasonable variations'; and implementing regulations permit 'reasonable variations caused by loss or gain of moisture during the course of good distribution practices or by unavoidable deviation in good manufacturing practice.' The FMIA prohibits labeling or packaging requirements 'different than' those imposed under that statute. The federal alw governing net-weight labeling of respondent millers' flour is contained in the Federal Food, Drug and Cosmetic Act (FDCA) and the Fair Packaging and Labeling Act (FPLA), which impose the same federal weight labeling standard for four as the FAIM imposes for meat. The FDCA and implementing regulations permit the same kind of reasonable variations from the packaging requirements as does the FMIA and its implementing regulations. The FDCA contains no pre-emptive language but the FPLA in 15 U.S.C.A § 1461 provides that the Act supersedes any state laws that are 'less stringent than or require information different from' the requirements of the FPLA or its implementing regulations. Respondents brought suits in Federal District Court, seeking declarations that § 12211 and Art. 5 were pre-empted by the federal laws and injunctions against enforcement of those provisions. The District Court granted the requested relief, and the Court of Appeals affirmed. Held:
1. With respect to respondent packing company's packaged bacon, § 12211 and Art. 5 are pre-empted by the FMIA. Since California makes no allowance for loss of weight resulting from moisture loss during the course of good distribution practice the state laws' requirement that the label accurately state the net weight, with implicit allowance only for reasonable manufacturing variations is 'different than' the federal requirement, which permits manufacturing deviations and variations caused by moisture loss during good distribution practice. Pp. 528-532.
2. Although 15 U.S.C. § 1461 does not pre-empt § 12211 as implemented by Art. 5, since it appears that the California law is not 'less stringent than' and does not 'require information different from' the FPLA and implementing regulations, nevertheless, with regard to respondent millers' flour, enforcement of § 12211, as implemented by Art. 5, would prevent '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, in passing the FPLA, an impermissible result under the Constitution, and hence the state law must yield to the federal. The goal of the FPLA to facilitate value comparisons among similar products cannot be accomplished unless packages that bear the same indicated weight in fact contain the same quantity of the product for which the consumer is paying. Here packages of flour that meet the federal labeling requirements and that have the same stated quantity of contents can be expected to contain the same amount of flour solids, since variations from stated weight caused by loss of moisture are permitted, whereas as a result of the application of the California standard, which does not permit such variations, consumers who attempt to compare the value of identically labeled packages of flour would not be comparing packages that contain identical amounts of flour solids and hence would be misled. Pp. 532-543.
530 F.2d 1295 and 530 F.2d 1317, affirmed.
Argument commenced by Loyal E. Keir, Riverside, Cal., for the petitioner and continued by Allan J. Goodman, Los Angeles, Cal., for the State of California et al., as Amici curiae, by special leave of Court.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Petition Jones is Director of the Department of Weights and Measures in Riverside County, Cal.1 In that capacity he ordered removed from sale bacon packaged by respondent Rath Packing Co. and flour packaged by three millers, respondents General Mills, Inc., Pillsbury Co., and Seaboard Allied Milling Corp. (hereafter millers). Jones acted after determining, by means of procedures set forth in 4 Cal.Admin.Code c. 8, Art. 5, that the packages were contained inlots2 whose average net weight was less than the net weight stated on the packages. The removal orders were authorized by Cal.Bus. & Prof.Code § 12211 (West Supp. 1977).3
2
Rath and the millers responded by filing suits in the District Court for the Central District of California.4 They sought both declarations that § 12211 and Art. 5 are preempted by federal laws regulating netweight labeling and injunctions prohibiting Jones from enforcing those provisions. The District Court granted the requested relief5 and, insofar as is relevant here, the Court of Appeals affirmed.6 We granted Jones' petition for certiorari, 425 U.S. 933, 96 S.Ct. 1663, 48 L.Ed.2d 174 (1976),7 and now affirm the judgments of the Court of Appeals.
3
* In its present posture, this litigation contains no claim that the Constitution alone denies California power to enact the challenged provisions.8 We are required to decide only whether the federal laws which govern respondents' packing operations preclude California from enforcing § 12211, as implemented by Art. 5.
4
Our prior decisions have clearly laid out the path we must follow to answer this question. The first inquiry is whether Congress, pursuant to its power to regulate commerce, U.S.Const., Art. 1, § 8, has prohibited state regulation of the particular aspects of commerce involved in this case. Where, as here, the field which Congress is said to have pre-empted has been traditionally occupied by the States, see, e. g., U.S. Const., Art. I, § 10; Patapsco Guano Co. v. North Carolina, 171 U.S. 345, 358, 18 S.Ct. 862, 867, 43 L.Ed. 191 (1898), 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). This assumption provides assurance that 'the federal-state balance,' United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971), will not be disturbed unintentionally by Congress or unnecessarily by the courts. But when Congress has 'unmistakably . . . ordained,' Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. This result is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose. City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 633, 93 S.Ct. 1854, 1859, 36 L.Ed.2d 547 (1973); Rice v. Santa Fe Elevator Corp., supra, 331 U.S. at 230, 67 S.Ct. at 1152.
5
Congressional enactments that do not exclude all state legislation in same field nevertheless override state laws with which they conflict. U.S.Const., Art. VI. The criterion for determining whether state and federal laws are so inconsistent that the state law must give way is firmly established in our decisions. Our task is 'to determine whether under the circumstances of this particular case, (the State's) 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). Accord, De Canas v. Bica, 424 U.S. 351, 363, 96 S.Ct. 933, 940, 47 L.Ed.2d 43 (1976); Perez v. Campbell, 402 U.S. 637, 649, 91 S.Ct. 1704, 1711, 29 L.Ed.2d 233 (1971); Florida Lime & Avocado Growers, Inc. v. Paul, supra, 373 U.S. at 141, 83 S.Ct. at 1217; id., at 165, 83 S.Ct. at 1229; (White, J., dissenting). This inquiry requires us to consider the relationship between state and federal laws as they are interpreted and applied, not merely as they are written. See De Canas v. Bica, supra, 424 U.S. at 363-365, 96 S.Ct. at 940-941; Swift & Co. v. Wickham, 230 F.Supp. 398, 408 (S.D.N.Y.1964), appeal dismissed, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), aff'd on further consideration, 364 F.2d 241 (C.A.2d 1966), cert. denied, 385 U.S. 1036, 87 S.Ct. 776, 17 L.Ed.2d 683 (1967).
II
6
Section 12211 of the Cal.Bus. & Prof.Code (West Supp. 1977) applies to both Rath's bacon and the millers' flour. The standard it establishes is straightforward: '(T)he average weight or measure of the packages or containers in a lot of any . . . commodity sampled shall not be less, at the time of sale or offer for sale, than the net weight or measure stated upon the package.'
7
In order to determine whether that standard has been violated, local officials such as Jones follow the statistical sampling procedure set forth in Art. 5.9 That procedure requires the inspector to identify a lot of identical packages of a commodity and determine the number of packages in that lot. He then determines, from tables in the regulation, the number of packages necessary to provide a suitable sample of the lot, and a smaller number of packages which is used to determine the average tare.10 After determining that average, the inspector weighs each package in the sample, subtracts the average tare, and records the difference between the measured and the stated net weights. These measurements are used to identify individual packages in the sample which deviate unreasonably from the stated weight. Those packages are replaced11 in the sample and the replacements weighed. Finally, the deviations from the stated weight are totaled algebraically and compared with tables which indicate the magnitude of the total error necessary to conclude that the lot's average weight is or not less than the stated weight.12
III
8
A. Rath's bacon is produced at plants subject to federal inspection under the Federal Meat Inspection Act (FMIA or Act), as amended by the Wholesome Meat Act, 81 Stat. 584, 21 U.S.C. § 601 et seq. Among the requirements imposed on federally inspected plants, and enforced by Department of Agriculture inspectors,13 are standards of accuracy in labeling. On the record before us, we may assume that Rath's bacon complies with these standards.14
9
The federal labeling requirement is imposed by § 7(b) of the FMIA, 81 Stat. 588, 21 U.S.C. § 607(b), which commands:
10
'All . . . meat and meat food products inspected at any establishment under the authority of this title . . . shall at the time they leave the establishment bear . . . the information required under paragraph (n) of section 1 of this Act.'
11
Section 1(n) of the FMIA, 21 U.S.C. § 601(n), defines the term 'misbranded.' As relevant here, it provides that meat or a meat product is misbranded
12
'(5) if in a package or other container unless it bears a label showing . . . (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical court: Provided, That . . . reasonable variations may be permitted, and exemptions as to small packages may be established, by regulations prescribed by the Secretary.' 81 Stat. 586.
13
Other sections of the FMIA prohibit dealing in misbranded products, as defined by § 1(n).15
14
The Secretary of Agriculture has used his discretionary authority to permit 'reasonable variations' in the accuracy of the required statement of quantity:
15
'The statement (of net quantity of contents) as it is shown on a label shall not be false or misleading and shall express an accurate statement of the quantity of contents of the container exclusive of wrappers and packing substances. Reasonable variations caused by loss or gain of moisture during the course of good distribution practices or by unavoidable deviations in good manufacturing practice will be recognized. Variations from stated quantity of contents shall not be unreasonably large.' 9 CFR § 317.2(h)(2) (1976).
16
Thus, the FMIA, as implemented by statutorily authorized regulations, requires the label of a meat product accurately to indicate the net weight of the contents unless the difference between stated and actual weights is reasonable and results from the specified causes.16
17
A. Rath's bacon is produced at U.S.C. § 678, prohibits the imposition of '(m) arking, labeling, packaging, or ingredient requirements in addition to, or different than, those made under' the Act.17 This explicit pre-emption provision dictates the result in the controversy between Jones and Rath. California's use of a statistical sampling process to determine the average net weight of a lot implicitly allows for variations from stated weight caused by unavoidable deviations in the manufacturing process.18 But California makes no allowance for loss of weight resulting from moisture loss during the course of good distribution practice.19 Thus, the state law's requirement that the label accurately state the net weight, with implicit allowance only for reasonable manufacturing variations is 'different than' the federal requirement, which permits manufacturing deviations and variations caused by moisture loss during good distribution practice.
18
Petitioner Jones seeks to avoid this result by arguing that the FMIA's provisions governing the accuracy of the required netquantity statements are not 'labeling requirements' within the meaning of § 408. He contends that 'labeling' refers only to the format and placement of information, not to its content.20 Requirements relating to accuracy, according to Jones, deal with the problem of misbranding, and § 408 grants the States concurrent jurisdiction over that subject.
19
We agree with the Court of Appeals that this argument is 'strained.' 530 F.2d, at 1314 n. 25. Nothing in the Act suggests the restrictive meaning petitioner ascribes to the phrase 'labeling requirements.' To the contrary, § 7(b) requires that the product bear specified information, see supra, at 528-529, and § 1(p) of the FMIA, 21 U.S.C. § 601(p),21 makes clear that any material bearing that information is part of the product's labeling. It twists the language beyond the breaking point to say that a law mandating that labeling contain certain information is not a 'labeling requirement.'
20
We therefore conclude that with respect to Rath's packaged bacon, § 12211 and Art. 5 are pre-empted by federal law.
IV
21
A. The federal law governing netweight labeling of the millers' flour is contained in two statutes, the Federal Food, Drug, and Cosmetic Act (FDCA), 52 Stat. 1040, as amended, 21 U.S.C. § 301 et seq., and the Fair Packaging and Labeling Act (FPLA), 80 Stat. 1296, as amended, 15 U.S.C. §§ 1451-1461. For the reasons stated below, we conclude that the federal weight-labeling standard for flour is the same as that for meat.
22
The FDCA prohibits the introduction or delivery for introduction into interstate commerce of any food22 that is misbranded. 21 U.S.C. § 331. A food is misbranded under the FDCA,
23
'(i)f in package form unless it bears a label containing . . . an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, That . . . reasonable variations shall be permitted, and exemptions as to small packages shall be established by regulations prescribed by the Secretary.' § 343(e).
24
This provision is identical to the parallel provision in the FMIA, see supra, at 529, except that the FDCA mandates rather than allows the promulgation of implementing regulations.23 The regulation issued in response to this statutory mandate is also substantially identical to its counterpart under the FMIA:
25
'The declaration of net quantity of contents shall express an accurate statement of the quantity of contents of the package. Reasonable variations caused by loss or gain of moisture during the course of good distribution practice or by unavoidable deviations in good manufacturing practice will be recognized. Variations from stated quantity of contents shall not be unreasonably large.' 21 CFR § 1.8b(q) (1976).
26
Since flour is a food under the FDCA, its manufacture is also subject to the provisions of the FPLA. See 15 U.S.C. §§ 1452, 1459(a). That statute states a congressional policy that '(p)ackages and their labels should enable consumers to obtain accurate information as to the quantity of the contents and should facilitate value comparisons.' § 1451. To accomplish those goals, insofar as is relevant here, the FPLA bans the distribution in commerce of any packaged commodity unless it complies with regulations
27
'Which shall provide that
28
'(2) The net quantity of contents (in terms of weight, measure, or numerical count) shall be separately and accurately stated in a uniform location upon the principal display panel of (the required) label.' § 1453(a).
29
The FPLA also contains a saving clause which specifies that nothing in the FPLA 'shall be construed to repeal, invalidate, or supersede' the FDCA. § 1460. Nothing in the FPLA explicitly permits any variation between stated weight and actual weight.
30
The Amici States contend that since the FPLA does not allow any variations from stated weight, there is no difference between federal law governing labeling of flour and California law. The Court of Appeals, however, held that because of the savings clause, compliance with the FDCA, which does allow reasonable variations, satisfies the requirements of the FPLA. 530 F.2d, at 1325. Amici respond that the Court of Appeals, misinterpreted the FDCA and that the FDCA establishes a statutory standard of strict accuracy for net-weight labeling. They argue, therefore, that the saving clause of the FPLA does not alter the standard mandated by § 1453. Brief for 39 States as Amici Curiae 15-21. Alternatively, the States argue that although the saving clause means that the FPLA does not supersede the FDCA, 'it cannot be construed to excuse compliance with FPLA standards where both FDCA and FPLA requirements are applicable.' Id., at 28.
31
The States' argument that the FDCA standard makes no allowance for reasonable variations is based on this Court's opinion in United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 53 S.Ct. 42, 77 L.Ed. 175 (1932). Shreveport decided an appeal by the Government in a criminal case involving shortweighting in violation of the predecessor of the FDCA, the Food and Drugs Act, 34 Stat. 768, as amended, c. 117, 37 Stat. 732. The trial court had dismissed the indictment under that statute, which was essentially identical to the net-weight labeling requirement of the FDCA,24 on the ground that the prohibition of unreasonable variations from the marked weight was too indefinite to state a criminal offense. We reversed, holding that the statute's substantive standard was created by the 'accurate statement' language which preceded the proviso allowing reasonable variations, and that the proviso merely granted administrative authority to promulgate regulations permitting variations 'from the hard and fast rule of the act.' 287 U.S., at 81-82, 53 S.Ct., at 43. Since Congress re-enacted the language interpreted by the Shreveport Court, FDCA, c. 675, § 403(e), 52 Stat. 1047, Amici conclude that the standard under the FDCA is also a 'hard and fast rule.'
32
We need not decide whether the rationale as well as the result of Shreveport remains good law.25 It is clear that 21 CFR § 1.8b(q) (1976), insofar as it is based on the FDCA, has the force of law26 and allows reasonable variations. Thus, whether the statutory standard is viewed as strict, with the regulation considered a restriction on the power to prosecute, or whether the standard is itself viewed as incorporating the flexibility of the proviso and its implementing regulation,27 the result is the same. Under the FDCA, reasonable variations from the stated net weight do not subject a miller to prosecution, whether civil or criminal, if the variations arise from the permitted causes. The question raised by the arguments of amici is whether by enacting the FPLA, Congress intended to eliminate the area of freedom from prosecution created by the FDCA and its implementing regulation.
33
Over 60 years ago, Congress concluded that variations must be allowed because of the nature of certain foods and the impossibility of developing completely accurate means of packing. H.R.Rep.No.850, 62d Cong., 2d Sess., 2 (1912); S.Rep.No.1216, 62d Cong., 3d Sess., 2-3 (1913).28 Since 1914, regulations under the food and drug laws have permitted reasonable variations from stated net weight resulting from packing deviations or gain or loss of moisture occurring despite good commercial practice. See United States v. Shreveport Grain & Elevator Co., supra, 287 U.S., at 84, 53 S.Ct., at 44. If Congress had intended to overrule this longstanding administrative practice, founded on a legislative statement of necessity, we would expect it to have done so clearly. Instead, it explicitly preserved existing law, with 'no changes.' 15 U.S.C. § 1460; S.Rep.No.1186, 89th Cong., 2d Sess., 20 (1966). The legislative history of the FPLA contains some indication that the saving clause was understood to preserve the reasonable-variation regulation under the FDLA contains some indication that the saving clause was understood to perserve the reasonable-variation regulation under the FDCA,29 and no evidence that Congress affirmatively intended to overrule that regulation.30 We can only conclude that under the FPLA, as under the FDCA, a manufacturer of food is not subject to enforcement action for violation of the net-weight labeling requirements if the label accurately states the net weight, with allowance for the specified reasonable variations.
34
B. The FDCA contains no pre-emptive hand, declares that
35
'it is the express intent of Congress to supersede any and all laws of the States or political subdvisions thereof insofar as they may now or hereafter provide for the labeling of the net qua(nt)ity of contents of the package of any consumer commodity covered by this chapter which are less stringent than or require information different from the requirements of section 1453 of this title or regulations promulgated pursuant thereto.' 15 U.S.C. § 1461.31
36
The Court of Appeals, although recognizing that this section leaves more scope for state law than does the FMIA, concluded that § 12211, as implemented by Art. 5, is preempted because it is less stringent than the Federal Acts, 530 F.2d, at 1324-1327.
37
The basis for the Court of Appeals' holding is unclear. Its opinion may be read as based on the conclusion that the state law is inadequate because its enforcement relies on a statistical averaging procedure. We have rejected that conclusion. See supra, at 531, and n. 18. Alternatively, the Court of Appeals may have found California's approach less stringent because the State takes no enforcement action against lots whose average net weight excees the weight stated on the label, even if that excess is not a reasonable variation attributable to a federally allowed cause.
38
We have some doubt that by pre-empting less stringent state laws, Congress intended to compel the States to expend scarce enforcement resources to prevent the sale of packages which contain more than the stated net weight. We do not have to reach that question, however, because in this respect California law apparently differs not at all from federal law, as applied. The inspectors responsible for enforcing the netweight labeling provisions of the Federal acts are officially informed that '(f)ield weighing for net weight is primarily to determine the likelihood of short weight units in the lots.' Moreover, they are not required to submit samples to headquarters 'if the average net is not below the amount declared on the label.' Food and Drug Administration, Inspection Operations Manual 448.1, 448.13 (1976). These instructions undercut the argument that there is a federal interest in preventing packages from being overfilled.32 Since neither jurisdiction is concerned with overweighting in the administration of its weights and measures laws, we cannot say that California's statutory lack of concern for that 'problem'33 makes its laws less stringent than the federal.
39
Respondents argue that California's law is pre-empted because it requires information different from that required by federal law. The meaning of the statutory pre-emption of laws that require 'information different from' the federal net-weight labeling provisions, like the meaning of the phrase 'less stringent,' is unclear. Respondents attribute to the ban on requiring different information a broad meaning, similar in scope to the pre-emption provision of the FMIA. They contend that since California law requires the label to state the minimum net weight, it requires 'information different from' the federal laws, which demand an accurate statement with allowance for the specified reasonable variations. Brief for Respondents 31-32. The legislative history, however, suggests that the statute expressly pre-empts as requiring 'different information' only state laws governing net quantity labeling which impose requirements inconsistent with those imposed by federal law.34 Since it would be possible to comply with the state law without triggering federal enforcement action we conclude that the state requirement is not inconsistent with federal law. We therefore hold that 15 U.S.C. § 1461 does not pre-empt California's § 12211 as implemented by Art. 5.
40
That holding does not, however, resolve this case, for we still must determine whether the state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' See supra, at 526. As Congress clearly stated, a major purpose of the FPLA is to facilitate value comparisons among similar products. Obviously, this goal cannot be accomplished unless packages that bear the same indicated weight in fact contain the same quantity of the product for which the consumer is paying. The significance of this requirement for our purposes results from the physical attributes of flour.
41
Flour is composed of flour solids and moisture. The average water content of wheat kernels used to make flour is 12.5% by weight, with a range from 10% to 14.5%. Efficient milling practice requires adding water to raise the moisture content to 15% to 16%; if the wheat is too wet or too dry, milling will be hindered. During milling, the moisture content is reduced to 13% to 14%. App. 28-29.35
42
The moisture content of flour does not remain constant after milling is completed. If the relative humidity of the atmosphere in which it is stored is greater than 60%, flour will gain moisture, and if the humidity is less than 60%, it will lose moisture.36 The federal net-weight labeling standard permits variations from stated weight caused by this gain or loss of moisture.
43
Packages that meet the federal labeling requirements37 and that have the same stated quantity of contents can be expected to contain the same amount of flour solids.38 Manufacturers will produce flour with a moisture content fixed by the requirements of the milling process.39 Since manufacturers have reason not to pack significantly more than is required and federal law prohibits underpacking, they will pack the same amount of this similarly composed flour into packages of any given size.40 Despite any changes in weight resulting from changes in moisture content during distribution, the packages will contain the same amount of flour solids when they reach the consumer. This identity of contents facilitates consumer value comparisons.
44
The State's refusal to permit reasonable weight variations resulting from loss of moisture during distribution produces a different effect.41 In order to be certain of meeting the California standard, a miller must ensure that loss of moisture during distribution will not bring the weight of the contents below the stated weight. Local millers, which serve a limited area, could do so by adjusting their packing practices to the specific humidity conditions of their region. For example, a miller in an area where the humidity is typically higher than 60% would not need to overpack at all. By contrast, a miller with a national marketing area would not know the destination of its flour when it was packaged and would therefore have to assume that the flour would lose weight during distribution. The national manufacturer, therefore, would have to overpack.
45
Similarly, manufacturers who distributed only in States that followed the federal standard would not be concerned with compensating for possible moisture loss during distribution. National manufacturers who did not exclude the nonconforming States from their marketing area, on the other hand, would have to overpack. Thus, as a result of the application of the California standard, consumers throughout the country who attempted to compare the value of identically labeled packages of flour would not be comparing packages which contained identical amounts of flour solids. Value comparisons which did not account for this difference and there would be no way for the consumer to make the necessary calculations would be misleading.
46
We therefore conclude that with respect to the millers' flour, enforcement of § 12211, as implemented by Art. 5, would prevent 'the accomplishment and execution of the full purposes and objectives of Congress' in passing the FPLA. Under the Constitution, that result is impermissible, and the state law must yield to the federal.
47
The judgments are affirmed.
48
It is so ordered.
49
Mr. Justice REHNQUIST, with whom Mr. Justice STEWART joins, concurring in part and dissenting in part.
50
I agree that with respect to Rath's packaged bacon, § 12211 of the Cal.Bus. & Prof. Code and Art. 5 of 4 Cal. Admin. Code, c. 8, are pre-empted by the express pre-emptive provision of the Federal Meat Inspection Act, 21 U.S.C. § 678. I also agree that with respect to General Mills' flour, § 12211 and Art. 5 are not pre-empted by the express pre-emptive provision of the Fair Packaging and Labeling Act (FPLA), 15 U.S.C. § 1461. I am unable to agree, however, with the implicit pre-emption the Court finds with respect to the flour. This latter pre-emption is founded in unwarranted speculations that hardly rise to that clear demonstration of conflict that must exist before the mere existence of a federal law may be said to pre-empt state law operating in the same field.
51
With respect to labeling requirements for flour under the scheme contemplated by the FPLA in conjunction with the Federal Food, Drug, and Cosmetic Act, the Court determines that the state-law labeling requirements are neither 'less stringent than' nor inconsistent with those federal requirements. This conclusion quite properly dictates the Court's holding that Congress has not expressly prohibited state regulation in this field. The remaining inquiry, then, is whether the two statutory schemes are in utter conflict.1 As this Court noted in Kelly v. Washington, 302 U.S. 1, 10, 58 S.Ct. 87, 92, 82 L.Ed. 3 (1937):
52
'The principle is thoroughly established that the exercise by the state of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so 'direct and positive' that the two acts cannot 'be reconciled or consistently stand together."
53
See also Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 156, 62 S.Ct. 491, 496, 86 L.Ed. 754 (1942); Askew v. American Waterways Operators, Inc., 411 U.S. 325, 337, 341, 93 S.Ct. 1590, 1600, 36 L.Ed.2d 280 (1973). When we deal, as we do here, with congressional action 'in a field which the States have traditionally occupied,' the basic assumption from which preemption must be viewed is 'that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947); cf. De Canas v. Bica, 424 U.S. 351, 356, 96 S.Ct. 933, 936-937, 47 L.Ed.2d 43 (1976). I am simply unable to find that this stringent standard has been met in this case.
54
The Court's opinion demonstrates that it is physically possible to comply with the state-law requirement 'without triggering federal enforcement action,' ante, at 540. This leads the Court to conclude that the 'state requirement is not inconsistent with federal law.' Ibid. It also must lead to the conclusion that this is not a case 'where compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce.' Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963). Pre-emption, then, if it is to exist at all in this case, must exist because the operation of the state Act inexorably conflicts with the purposes underlying the Federal Act. The Court relies on the fact that one of the purposes of the EPLA is to 'facilitate value comparisons' among consumers, 15 U.S.C. § 1451. But merely identifying a purpose is not enough; it must also be shown that the state law inevitably frustrates that purpose. As we but recently noted:
55
'We must also be careful to distinguish those situations in which the concurrent exercise of a power by the Federal Government and the States or by the States alone may possibly lead to conflicts and those situations where conflicts will necessarily arise. 'It is not . . . a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of (state) sovereignty.' The Federalist No. 32, p. 243 (B. Wright ed. 1961).' Goldstein v. California, 412 U.S. 546, 554-555, 93 S.Ct. 2303, 2309, 37 L.Ed.2d 163 (1973) (emphasis in original).
Under the proper test, it is only
56
'(i)f the purpose of the act cannot otherwise be accomplished if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect the state law must yield to the regulation of Congress within the sphere of its delegated power.' Savage v. Jones, 225 U.S. 501, 533, 32 S.Ct. 715, 726, 56 L.Ed. 1182 (1912).
57
The Court's reliance on supposition and inference fails in two respects to demonstrate that respondents have carried their burden of demonstrating pre-emption. First, on the Court's own premises, there should be no finding of pre-emption. We are told, ante, at 526, that the relevant inquiry is 'the relationship between state and federal laws as they are interpreted and applied, not merely as they are written,' while we are further told, ante, at 539, that there is, in fact, no 'federal interest in preventing packages from being overfilled,' since the Federal Government is not 'concerned with overweighting in the administration of its weights and measures laws . . ..' Under these premises, it is hard to accept the Court's conclusion that, because of the federal purpose to facilitate consumer value comparisons,2 the state law is pre-empted because some packages might contain more than the minimum weight stated and more than another company's similarly marked package. For, we have been told that, should a manufacturer deliberately overpack, for whatever reason,3 there will be no federal action taken against him even though value comparisons might then 'be misleading.' It is virtually impossible to say, as the Court does, that 'neither the State nor the Federal Government is concerned with over weighting,' ante, at 542 n. 41, and yet conclude that state-induced overweighting conflicts with a 'value comparison' purpose, while, presumably, other overweighting does not. In viewing such a purpose to be sufficient to require pre-emption while the very purpose is ignored in practice by the administering federal agency reverses the normal presumption against finding pre-emption. The reasoning process which leads the Court to conclude that there is no express pre-emption, ante, at 540, leads me to conclude that there is no implied pre-emption.4
58
Second, and as troubling as the legal inconsistency, is the Court's reliance on unproved factual speculation in demonstrating the purported irreconcilable undermining of the federal purpose by the state statutory scheme. The premises the opinion must rely on are many. It acknowledges that flour packed under different humidity conditions would nonetheless comply with the federal standard, even though, as a result, similarly marked packages might contain different quantities of flour 'solids,' ante, at 542, and n. 39, but relies on the economics of the milling process to conclude that packers 'will pack the same amount of (flour solids) into packages of any given size.' This may normally be true as an economic fact, but it is not supported by the record and as a Court we have no way of knowing it from other sources.
59
Similarly defective is the reasoning process by which the majority concludes that local millers could adjust their packaging practices to specific humidity conditions, while national millers could not, since the national millers 'would not know the destination of (their) flour when it was packaged and would therefore have to assume that the flour would lose weight during distribution.' Ante, at 543. This assumption, too, is unsupported by the record.5 We simply have no basis for concluding that national distributors do not know, or could not know through the exertion of some modicum of effort, where their flour will end up. The possibility that a packer might have to incur some extra expense in meeting both systems simply does not mean that the 'purposes of the act cannot otherwise be accomplished,' Savage v. Jones, 225 U.S., at 533, 32 S.Ct., at 726, nor does it demonstrate that 'the two acts cannot 'be reconciled . . .," Kelly v. Washington, 302 U.S., at 10,6 58 S.Ct., at 92.
60
The assumptions in the Court's opinion not only are insufficient to compel a finding of implied pre-emption, they suggest an approach to the question of pre-emption wholly at odds with that enunciated in Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963). There, this Court was concerned with differing federal and state maturity standards for avacados grown in Florida. This Court rejected a test which looked to the similarity of purposes, id., at 142, 83 S.Ct., at 1217, and noted instead that a manufacturer could have complied with both statutes by modifying procedures somewhat, id., at 143, 83 S.Ct., at 1217-1218, which demonstrated that there was 'no inevitable collision between the two schemes of regulation, despite the dissimilarity of the standards,' ibid. Nothing has been shown to demonstrate that this conclusion is not equally justified in the instant case.
61
The Court today demonstrates only that there could be not that there must be a conflict between state and federal laws.7 Because reliance on this test to find pre-emtion, absent an explicit pre-emptive clause, seriously misapprehends the carefully delimited nature of the doctrine of pre-emption, Goldstein v. California, 412 U.S., at 554, 93 S.Ct., at 2308. I dissent from the holding that § 12211 and Art. 5 are pre-empted with respect to General Mills' flour.
*
Together with Jones, Director, Department of Weights and Measures, Riverside County v. General Mills, Inc., et al., also on certiorari to the same court (see this Court's Rule 23(5)).
1
The title 'county director of weights and measures' is a statutory alternative to the title 'county sealer.' Cal.Bus. § Prof.Code § 12006 (West 1964). The office of county sealer is established and its duties prescribed by §§ 12200-12214 (West 1964 and Supp. 1977).
2
"Lot' means the total number of packages of a single item of merchandise in a single size at one location and may contain two or more 'sub-lots.'
"One location' shall be construed to mean 'one display' or 'one grouping,' and does not, for example, mean all items of the same brand and size stored or kept for sale in one establishment.' 4 Cal.Admin.Code § 2931.3 (1970).
3
'Each sealer shall, from time to time, weigh or measure packages, containers or amounts of commodities sold, or in the process of delivery, in
order to determine whether the same contain the quantity or amount represented and whether they are being sold in accordance with law.
'The director (of agriculture) is hereby authorized and directed to adopt and promulgate necessary rules and regulations governing the procedures to be followed by sealers in connection with the weighing or measuring of amounts of commodities in individual packages or containers or lots of such packages or containers, including the procedures for sampling any such lot, and in determining whether any package or container or a lot of such packages or containers complies with the provisions of this section. . . .
'Any such rule or regulation, or amendment thereof, shall be adopted and promulgated by the director in conformity with the provisions of Chapter 4.5 (commencing with Section 11371), of Part 1 of Division 3 of Title 2 of the Government Code; provided, that the average weight or measure of the packages or containers in a lot of any such commodity sampled shall not be less, at the time of sale or offer for sale, than the net weight or measure stated upon the package, and provided further, that said rules or regulations applicable to food, as defined in Section 26450 of the Health and Safety Code, insofar as possible, shall not require higher standards and shall not be more restrictive than regulations, if any, promulgated by the Department of Health, Education, and Welfare, Food and Drug Administration, under the provisions of the Federal Food, Drug and Cosmetic Act.
'Any lot or package of any such commodity which conforms to the provisions of this section shall be deemed to be in conformity with the provisions of this division relating to stated net weights or measures.
'Whenever a lot or package of any commodity is found to contain, through the procedures authorized herein, a less amount than that represented, the sealer shall in writing order same off sale and require that an accurate statement of quantity be placed on each such package or container before same may be released for sale by the sealer in writing. The sealer may seize as evidence any package or container which is found to contain a less amount than that represented.'
4
Rath filed separate actions against Jones and M. H. Becker, Director of the County Department of Weights and Measures of Los Angeles County. The two actions were consolidated for decision in the District Court after trial of the action against Becker and argument of cross-motions for summary judgment in the suit against Jones. Rath Packing Co. v. Becker, 357 F.Supp. 529, 531 (C.D.Cal.1973). The Director of Food and Agriculture of the State of California intervened as a defendant in the Becker proceeding. The millers filed a single action against Jones.
5
The District Court's opinion in Rath's suit is reported as Rath Packing Co. v. Becker, supra. The decision in the millers' action is not separately reported, but is reprinted as an appendix to the Court of Appeals' opinion. General Mills, Inc. v. Jones, 530 F.2d 1317, 1329-1330 (C.A.9 1975).
Rath's argument that 21 U.S.C. § 607(b) limits enforcement of the accuracy requirement to the time meat or meat food products leave the processing plant was rejected by the District Court, 357 F.Supp., at 532, as were the millers' contentions that California's inspection laws unreasonably burden interstate commerce and deny manufacturers due process of law. See General Mills, Inc. v. Jones, supra, at 1322-1323.
6
Rath Packing Co. v. Becker, 530 F.2d 1295 (C.A.9 1975); General Mills, Inc. v. Jones, supra.
The Court of Appeals reversed the District Court's holding that the governing federal regulations, 9 CFR § 317.2(h)(2) (1976) and 21 CFR § 1.8b(q) (1976), are void for vagueness. Rath Packing Co. v. Becker, supra, at 1308-1312; General Mills, Inc. v. Jones, supra, at 1323-1324. The validity of the regulations is not at issue here.
7
Jones' single petition for certiorari sought review of the judgments in both Rath Packing Co. v. Becker, supra, and General Mills, Inc. v. Jones, supra. See this Court's Rule 23(5). No action has been taken on the separate petition for certiorari filed by California's Director of Food and Agriculture, see n. 4, supra, and Becker. Wallace v. Rath Packing Co., cert. pending No. 75-1052.
8
The Court of Appeals affirmed the District Court's holding, see n. 5, supra, that the California provisions violate neither the Commerce Clause nor the Fourteenth Amendment. 530 F.2d at 1322-1323. The millers do not challenge these holdings here.
9
The District Court concluded that the Art. 5 'procedure is a statistical determination based upon normal and proven statistical standards.' 357 F.Supp., at 533. The statistical validity of the procedure has not been challenged.
10
'Tare' is the weight of the packing material in which the product is contained. In order to determine the tare, the inspector weighs each package and then removes and weighs the contents of each package. By subtracting the net weight from the gross weight, he obtains the tare.
After it is packed, bacon loses moisture. Some of that moisture is absorbed by the insert on which the becon is placed. A wax board insert will absorb approximately 5/16 of an ounce from the product, whereas a polyethylene insert will absorb approximately 1/16 of an ounce. App. 88-90, 94; 530 F.2d, at 1299 n. 2. In addition, moisture is lost to the atmosphere or, in a hermetically sealed package, by condensation onto the packing material. App. 61. California's inspectors include in the weight of the material any moisture or grease which the bacon has lost to it. Federal inspectors at the packing plant, by contrast, determine the tace by weighing the packing material dry. 530 F.2d at 1299. It is not feasible for field inspectors to use a dry tare method. C. Brickenhamp, S. Hasko, & M. Natrella, Checking Prepackaged Commodities Revision of National Bureau of Standards Handbook 67, p. 33 (July 1975 Draft).
After noting this difference, the Court of Appeals stated: 'The difference in tares employed is not an issue in this case.' 530 F.2d, at 1299 n. 4. Respondents have, nevertheless, suggested that the divergence in results produced by the two techniques requires federal pre-emption, Brief for Respondents 18-19, 37; Tr. of Oral Arg. 43-44. We consider the difference significant only insofar as it is an aspect of the State's failure to allow variations from stated weight resulting from loss of moisture during good distribution practice. See infra, at 531-532.
11
'The individual unreasonable errors, both plus and minus, are excluded from the average, because they are acted upon individually and because their inclusion could destroy or alter the packaging pattern. For instance: A sample of ten (10) packages could show nine (9) packages each with a minus error of 1, and one package with a plus error of 9. If the large plus error is included, the total error is 0. Obviously, the pattern of the sample is a minus 1 per package.' 4 Cal.Admin.Code § 2933.3.11 (1961).
Enforcement action is taken against packages with unreasonably large minus errors. § 2933.3.12(c) (1970).
12
If the result of the sampling is not conclusive, additional samples may be drawn. §§ 2933.3.12(a), (b) (1961).
13
Rath's procedures for assuring that its bacon packages contain the stated net weight have been submitted to the Department of Agriculture for approval. 530 F.2d, at 1298; Brief for Respondents 9. When an approved plan is in effect, the federal inspector reviews records and observes procedures to assure compliance with the plan. The inspector is also required to sample one subgroup at least twice a week and to check the weight of a production lot at least once a week. U.S. Department of Agriculture, Meat and Pultry Inspection Manual & 18.61(b)(1)(i) (1973). When no approved plan is in effect, the inspector samples at least 10 lots each week, unless production volume is low. Id., at 18.61(b)(2).
14
See 530 F.2d, at 1299.
15
21 U.S.C. §§ 607(d), 610(b).
16
Both sources of variation from stated weight are relevant to bacon. Bacon loses moisture to its wrapping materials and to the atmosphere. See n. 10, supra. The rate of loss to the atmosphere in a typical retail showcase is 0.3/16 to 0.4/16 of an ounce per day. App. 95. In addition, since bacon is cut in discrete slices, it is impossible to guarantee that each package will contain exactly the stated weight when packed. Instead of seeking exactitude, Rath approved packages if they were within 5/16 of an ounce of a target weight. Prior to petitioner's enforcement activities, and the similar activities of Becker, see n. 4, supra, Rath's target weight was 3/16 of an ounce over the stated weight, or 1 lb. 3/16 oz. for a one-pound package. Thus, a package would be passed if it weighed between 15 14/16 oz. and 1 lb. 8/16 oz. In response to the California enforcement measures, Rath raised its target weight to 8/16 oz. over stated net weight for bacon packed on a polyethylene insert, and 12/16 oz. over stated weight of bacon packed on wax boards. App. 86-89.
17
Section 408, 81 Stat. 600, states in full:
'Requirements within the scope of this Act with respect to premises, facilities and operations of any establishment at which inspection is provided under title I of this Act, which are in addition to, or different than those made under this Act may not be imposed by any State or Territory or the District of Columbia, except that any such jurisdiction may impose recordkeeping and other requirements within the scope of section 202 of this Act, if consistent therewith, with respect to any such establishment. Marking, labeling, packaging, or ingredient requirements in addition to, or different than, those made under this Act may not be imposed by any State or Territory or the District of Columbia with respect to articles prepared at any establishment under inspection in accordance with the requirements under title I of this Act, but any State or Territory or the District of Columbia may, consistent with the requirements under this Act, exercise concurrent jurisdiction with the Secretary over articles required to be inspected under said title; for the purpose of preventing the distribution for human food purposes of any such articles which are adulterated or misbranded and are outside of such an establishment, or, in the case of imported articles which are not at such an establishment, after their entry into the United States. This Act shall not preclude any State or Territory or the District of Columbia from making requirement or taking other action, consistent with this Act, with respect to any other matters regulated under this Act.'
18
The implicit recognition of manufacturing variations results from California's use of the statistically estimated average weight of the lot to determine whether the label accurately indicates the contents. By averaging the weight of the packages in the sample, California allows individual deviations around the packer's target weight to cancel each other out. The average weight of the sample should equal the target weight, see n. 16, supra, with allowance for sampling variation and moisture loss. Article 5 utilizes tables which recognize sampling variation, but it makes no allowance for moisture loss.
The Department of Agriculture itself uses statistical sampling techniques, including reliance on average lot weight to account for manufacturing deviations. See Meat and Poultry Inspection Manual, supra, n. 13, at § 18.61(b) (2); Brief for United States as Amicus Curiae 7 n. 4. Indeed, it is difficult to imagine any other practical technique for policing net-weight labeling requirements in a country where over 200 billion packages are produced every year. See Brickenhamp, Hasko, & Natrella, supra,( n. 10, at 78. We have found no indication that Congress intended simultaneously to grant concurrent jurisdiction to the States to enforce net-weight labeling requirements, see n. 17, supra, and to deny them the only practical tool with which to do so. Accordingly, we disagree with anything in the opinions below that suggests that States may not use valid statistical sampling techniques, including reliance on lot average weights, to police compliance with federal and valid state net-weight labeling laws.
19
Moisture loss during distribution will, obviously, cause the net weight of bacon to be less than it was when the bacon left the packing plant. An averaging procedure, in which deviations above the average cancel deviations below the average, does not make any allowance for moisture loss during good distribution practice, which works in only one direction.
20
Brief for Petitioner 40. See also Brief for 39 States as Amici Curiae 56-58.
21
'The term 'labeling' means all labels and other written, printed, or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article.' § 1(p), 81 Stat. 587.
22
Flour is a food within the coverage of the Act. See 21 U.S.C. § 321(f).
23
The definition of 'misbranded' in the FMIA is based on the definition in the FDCA. See S.Rep.No. 799, 90th Cong., 1st Sess., 7 (1967); U.S.Code Cong. & Admin.News 1967, p. 2188.
24
The statute construed in Shreveport provided that a food would be considered misbranded
'If in package form, the quantity of the contents be not plainly and conspicuously marked on the outside of the package in terms of weight, measure, or numerical count: Provided, however, That reasonable variations shall be permitted, and tolerances and also exemptions as to small packages shall be established by rules and regulations made in accordance with the provisions of section 3 of this Act.' 287 U.S., at 81, 53 S.Ct. at 43.
25
We have subsequently cited Shreveport as an example of a case where a criminal statute has been found not impermissibly vague although it did not provide an unmistakably clear line between prohibited and permitted conduct. Jordan v. De George, 341 U.S. 223, 231 n. 15, 71 S.Ct. 703, 708, 95 L.Ed. 886 (1951); Gorin v. United States, 312 U.S. 19, 27 n. 13, 61 S.Ct. 429, 433-434, 85 L.Ed. 488 (1941).
26
United States v. Mersky, 361 U.S. 431, 437-438, 80 S.Ct. 459, 463-464, 4 L.Ed.2d 423 (1960); Atchison, T. & S. F. R. Co. v. Scarlett, 300 U.S. 471, 474, 57 S.Ct. 541, 543, 81 L.Ed. 748 (1937).
27
This view, although contrary to the Court's analysis in Shreveport, is strongly supported by the legislative history of the statutory provision for reasonable variations. As originally passed, the Food and Drugs Act did not require packages to bear a statement of net weight, but it did require that any statement of weight be plain and correct. § 8, 34 Stat. 771. In 1913 Congress changed the law by requiring that labels state the quantity of contents, and at the same time it added the recognition of reasonable variations. C. 117, 37 Stat. 732. Both the House and Senate committee reports stated that '(u)nder the terms of the bill reasonable variations are permitted, whether tolerances are or are not established by the rules and regulations . . ..' H.R.Rep.No.850, 62d Cong., 2d Sess., 3 (1912); S.Rep.No.1216, 62 Cong., 3d Sess., 3 (1913).
28
The language of the two committee reports is identical:
'It being apparent to everyone that it is impossible to make packages of exactly the same size or to pack them with exactly the same quantity of contents, and it being also apparent that the exact weight and measure of the contents of a package may undergo slight changes from natural causes, it is also apparent that legislation requiring similar packages to contain the same exact quantity in terms of weight or measure, without allowing for any variation, would be destructive and prevent the putting of foods in packages.' H.R.Rep.No.850, supra, at 2; S.Rep.No.1216, supra, at 2-3.
29
See Hearings on Fair Packaging and Labeling before the House Committee on Interstate and Foreign Commerce, 89th Cong., 2d Sess., 208 (1966).
30
It is clear from reading the legislative history that Congress did not intend to alter the FDCA's standard of accuracy when it passed the FPLA's requirement that a separate and accurate statement of net quantity appear in a uniform location on package labels. 15 U.S.C. § 1453(a)(2). See, e. g., H.R.Rep.No.2076, 89th Cong., 2d Sess., 20 (1966) (chart indicating that only change from FDCA effected by provision which became § 1453 is imposition of location requirement).
31
Since we have held that 15 U.S.C. § 1453, read in conjunction with § 1460 and the FDCA, permits reasonable variations, we conclude that 21 CFR § 1.8b(q) (1976) properly relies on § 1453 as authority for its promulgation. Thus, § 1461 pre-empts state laws which 'are less stringent than or require informationdifferent from' § 1.8b(q). We need not consider respondents' contention, Brief for Respondents 30, that § 1.8b(q) is authorized by 15 U.S.C. § 1454(b), nor need we decide whether § 1461 would affect state laws less stringent than or different from regulations authorized by § 1454.
32
Overweight packages are apparently also of no concern in the administrationof the FMIA. See Meat and Poultry Inspection Manual, supra, n. 13, at 168-174. At oral argument, counsel for respondents was unable to cite any examples of federal enforcement action against overweight packages. See Tr. of Oral Arg. 49-50. To support his argument that federal law forbids overweighting, counsel relied on the argument made by the United States as amicus curiae in this litigation. The Government's brief in this Court also cites no examples of enforcement action based on overweighting and, although it refers generally to the inspection manuals cited here and in text, the brief makes no mention of the provisions to which we refer.
33
The economic self-interest of packers is likely to prevent avoidable overpacking.
34
The language of 15 U.S.C. § 1461 was contained in the House bill. The Senate bill, by contrast, provided for pre-emption of state requirements which 'differ from' those in the FPLA. S.Rep.No.1186, 89th Cong., 2d Sess., 38 n1966), U.S.Code Cong. & Admin.News 1966, p. 4069. The language accepted by the Hosue was adopted by the conference committee, along with the House committee's explanation that 'preemption would take place to the extent that 'State laws or State regulations with respect to the labeling of net quantity of contents of packages impose inconsistent or less stringent requirements than are imposed under section 4 of this legislation." H.R.Rep.No.2286, 89th Cong., 2d Sess., 11 (1966).
35
The maximum allowable moisture content for any product labeled 'flour' is 15%. 21 CFR § 15.1 (1976).
36
App. 32-35. Weight fluctuations of 3% to 4% resulting from changes in moisture content are not uncommon during good distribution practice within the continental United States. Id., at 32-33. The flour produced by respondent General Mills and ordered off the market by petitioner weighed, on the average, between 0.125% and 1.25% less than the stated weights. Id., at 36.
If flour were packed in airtight packages in order to prevent weight fluctuations resulting from changes in moisture content, it would spoil. Tr. of Oral Arg. 39.
37
It is undisputed that the packages of flour ordered off the market by petitioner complied with federal standards when packed. 530 F.2d, at 1320; App. 36-37.
38
The nutritional value of a quantity of flour is determined by the amount of flour solids it contains. Id., at 35.
39
Although federal law would allow moisture content to be higher than that required by the milling process, see n. 35, supra, flour of the type involved in this case is not produced with moisture content as high as the law would permit. App. 30. Since manufacturers would have an economic incentive to produce flour with as close to the allowable maximum moisture content as milling technique permits, one would expect all flour to have virtually the same moisture content when packed.
40
Unavoidable deviations resulting from the packing process will, of course, cause differences in the contents of individual packages. On the average, however, one would expect packages of a given size to contain the same amount.
41
Since neither the State nor the Federal Government is concerned with overweighting, the absence of a state provision parallel to the federal recognition of weight gain from moisture is of no consequence.
1
There is no contention that the subject of the regulation is in its 'nature national, or admit(ting) only of one uniform system . . .' Colley v. Board of Wardens, 12 How. 299, 319, 113 L.Ed. 996 (1852). On the contrary, 'the supervision of the readying of foodstuffs for market has always been deemed a matter of peculiarly local concern.' Florida Avocado Growers v. Paul, 373 U.S. 132, 144, 83 S.Ct. 1210, 1218, 10 L.Ed.2d 248 (1963).
2
This purposes is not the only purpose underlying the Federal Act. Title 15 U.S.C. § 1451 also announces the congressional policy of labeling packages so as to 'enable consumers to obtain accurate information as to the quantity of the contents . . ..'
3
Including, one would have supposed, state compulsion.
4
The majority nowhere explains why its conclusion that the 'state requirement is not inconsistent with federal law,' ante, at 540, does not reflect on the fact that the state statutory scheme does not inevitably conflict with the federal.
5
The Court's reliance on the possible differential effect of California's requirements on local and national millers is itself wholly speculative. To begin with, we do not know from the record that there are both 'local' and 'national' millers, however defined. Even if both exist, we simply do not know that local millers will ship flour only to areas with comparable humidity levels. Any miller might experience a variety of humidity conditions by shipping to two different areas, despite the fact that his operation may be considered local in that the two areas are relatively contiguous. Even in the same town, stores that are air-conditioned may have significantly different humidity conditions than exist elsewhere in the town. In such situations, the local millers would have to adjust their packing process to account for this differential, either by packing different quantities into different packages, and then tracing their distribution, or by overpacking all packages sufficiently to ensure that any possible humidity conditions could be met. The same would appear to be true for national millers. We simply, then, do not know that local millers and national millers would not be similarly affected. The Court's assertions to the contrary are nothing but speculations.
6
For all that appears, packers could easily adjust their processes so as to insure compliance with the purposes of both Acts. Even if such adjustment should entail a minor economic inconvenience, it has nowhere been demonstrated that the imposition of a moderate economic burden conflicts with the purpose of the federal statutory scheme. California, in the exercise of its police powers, may be deemed to have believed that the benefits of its enactment outweigh these costs. Unless it can be shown that additional cost itself conflicts with a clear congressional purpose, the presumption is that our federal system of government tolerates such costs. And if added costs will vitiate the conflict, I do not see how it can be said that the statutory schemes necessarily conflict rather than just 'may possibly' conflict. Goldstein v. California, 412 U.S. 546, 554, 93 S.Ct. 2303, 2309, 37 L.Ed.2d 163 (1973).
7
On its face, there is nothing inexorable about a conflict between a statute which, in effect, imposes a minimum weight requirement, and one whose purpose is to 'enable consumers to obtain accurate information as to the quantity of the contents and (to) facilitate value comparisons.' 15 U.S.C. § 1451.
| 910
|
430 U.S. 550
97 S.Ct. 1593
51 L.Ed.2d 630
Gary MANESS, petitioner,v.Louie L. WAINWRIGHT, Secretary, Florida Department of Offender Rehabilitation
No. 75-6909
Supreme Court of the United States
March 29, 1977
On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit.
March 29, 1977.
PER CURIAM.
1
The writ of certiorari is dismissed as improvidently granted.
| 89
|
430 U.S. 584
97 S.Ct. 1361
51 L.Ed.2d 660
ROSEBUD SIOUX TRIBE, Petitioner,v.Richard KNEIP et al.
No. 75-562.
Argued Jan. 12, 1977.
Decided April 4, 1977.
Syllabus
Both the language and leigslative history of the Acts of 1904, 1907, and 1910, whereby land in certain counties in South Dakota located within the boundaries of the Rosebud Sioux Reservation as defined in an 1889 Treaty was required to be deceded by the Reservation Indians to the Government for sale to settlers under the homestead and townsite laws with the proceeds to be credited to the Indians only as received or, with respect to certain parcels, for transfer to South Dakota for school use, held clearly to evidence a congressional intent to diminish the boundaries of the Reservation. Although such Acts were unilateral Acts of Congress without the counsent of three-fourths of the Rosebud Sioux Tribe's adult male members as was required by the original 1868 Treaty establishing the Reservation, that fact does not directly bear on the question whether Congress by these later Acts intended to diminish the Reservation boundaries. Nor is it conclusive with respect to congressional intent that these Acts changed the method of payment from an outright, fixed-sum payment to the Indians required by a 1901 Agreement that would have amended the 1889 Treaty and would have resulted in a diminution of the Reservation boundaries, but which, although approved by three-fourths of the Tribe's adult male members, was never ratified by Congress. Pp. 586-615.
521 F.2d 87, affirmed.
Marvin J. Sonosky, Washington, D. C., for petitioner.
William J. Janklow, Pierre, So. Dak., for respondents.
H. Bartow Farr, for the United States, as amicus curiae, pro hac vice, by special leave of Court.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
In June 1972, the Rosebud Sioux Tribe sued in the United States District Court for the District of South Dakota to obtain a declaratory judgment that the original boundaries of their reservation, as defined in the Act of March 2, 1889, 25 Stat. 888, had not been diminished by three subsequent Acts of Congress passed in 1904, 1907, and 1910 representively.1 The District Court, noting that '(f)rom the time these acts were passed, these (four) counties have been treated as outside the Rosebud Sioux Reservation by the settlers, their descendants, the State of South Dakota and the federal courts,' 375 F.Supp. 1065, 1084, denied relief. It concluded that Congress had intended to diminish the Reservation so as to exclude the four counties in South Dakota affected by the 1904, the 1907, and the 1910 Acts. The United States Court of Appeals for the Eighth Circuit, in a careful and comprehensive opinion, affirmed the judgment of the District Court. 521 F.2d 87. We granted certiorari, 425 U.S. 989, 96 S.Ct. 2199, 48 L.Ed.2d 814, to review this determination in the light of our recent decisions in DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975), and Martz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973). Since we conclude that the three Acts of Congress in qeuestion satisfy the requirement that '(a) congressional determination to terminate (an Indian reservation) must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history,' Mattz v. Arnett, supra, at 505, 93 S.Ct., at 2258, we affirm the judgment of the Court of Appeals.
2
* When established, the Rosebud Indian Reservation contained somewhat over 3.2 million acres, and covered all or a portion of what later became five counties in South Dakota: Gregory, Tripp, Lyman, Mellette, and Todd. The three Acts we are asked to construe successively disposed of all unallotted lands in Gregory County (1904 Act), in Tripp and Lyman Counties (1907 Act), and in Mellette County (1910 Act). Only Todd County remains unaffected by these post-1889 enactments. The contention of the Rosebud Sioux Tribe is that these Acts, while opening up the unallotted land outside of Todd County to non-Indian settlement, did not thereby change the Reservation boundaries, which continued to encompass these five counties.
3
In determining whether or not the 1889 Reservation boundaries were subsequently diminished by congressional enactments, we are guided by well-established legal principles. The underlying premise is that congressional intent will control. DeCoteau v. District County Court, supra, at 444, 449, 95 S.Ct., at 1092, 1095; United States v. Celestine, 215 U.S. 278, 285, 30 S.Ct. 93, 94, 54 L.Ed. 195 (1909). In determining this intent, we are cautioned to follow 'the general rule that '(d)oubtful expressions are to be resolved in favor of the weak and defenseless peopld who are the wards of the nation, dependent upon its protection and good faith." McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 174, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973), quoting Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478 (1930); see also Mattz v. Arnett, supra, at 505, 93 S.Ct., at 2258. The mere fact that a reservation has been opened to settlement does not necessarily mean that the opened area has lost its reservation status. Mattz v. Arnett, supra; see also Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962). But the 'general rule' does not command a determination that reservation status survives in the face of congressionally manifested intent to the contrary. DeCoteau v. District County Court, supra. In all case, 'the face of the Act,' the 'surrounding circumstances,' and the 'legislative history,' are to be examined with an eye toward determining what congressional intent was. Mattz v. Arnett, supra, at 505, 93 S.Ct., at 2258.
4
Applying these principles to the facts of this case, we conclude that the Acts of 1904, 1907, and 1910 did clearly evidence congressional intent to diminish the boundaries of the Rosebud Sioux Reservation. The parties agree that an amendment to the 1889 Treaty, which provided for a fixedsum payment and which was approved by three-fourths of the Rosebud Sioux Tribe's adult males in 1901, would have resulted in the diminution of the Rosebud Reservation boundaries. Congress did not, however, approve the 1901 amendment to the Treaty which the Tribe had ratified. The Tribe contends that, lacking tribal ratification and a fixed-sum provision, the later Acts were ineffectual to accomplish this same result. In the Tribe's view, the absence of these two factors vitally distinguishes the Acts in question from the otherwise similar Act examined in DeCoteau v. District County Court, supra. Because of the reasons hereafter set forth in greater detail, we conclude that, although the Acts of 1904, 1907, and 1910 were unilateral Acts of Congress without the consent of three-quarters of the members of the tribe required by the original Treaty,2 that fact does not have any direct bearing on the question of whether Congress by these later Acts did intend to diminish the Reservation boundaries. By the time of the first of these Acts, in 1904, Congress was aware of the decision of this Court in Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.C.t 216, 47 L.Ed. 299 (1903), which held that Congress possessed the authority to abrogate unilaterally lthe lplrovisionls of an Indian treaty. We also conclude that the changed method of payment is not conclusive with respect to congressional intent. Although the later Acts of Congress made less secure provisions for payment to the Tribe for the lands in question than did the 1901 Treaty, their language with respect to the reservation status of the opened lands was identical with or derivative from the language used in that proposed amendment.3 The language was also substantially equivalent to that used in the executed agreement involved in DeCoteau. We agree with the Court of Appeals and the District Court that this language not only opened the land for settlement, but diminished the boundaries of the Reservation pro tanto.4
II
5
The Rosebud Sioux are one of the tribes of Indians of the Sioux Nation. The Treaty of April 29, 1868, 15 Stat. 635, set aside all the land in South Dakota west of the Missouri River as the Great Sioux Reservation, consisting of some 25 million acres. Article 12 of the Treaty provided that no subsequent treaty for the cession of any part of the reservation would be valid without the written consent of three-fourths of the adult male Indians on the reservation. Despite this provision, in 1877 approximately 7.5 million acres, consisting of the Black Hills portion of the Great Sioux Reservation, were removed from the reservation by the Act of February 28, 1877, 19 Stat. 254. See Sioux Tribe v. United States, 97 Ct.Cl. 613 (1942), cert. denied, 318 U.S. 789, 63 S.Ct. 992, 87 L.Ed. 1155. Of the remaining reservation, approximately one-half was 'restored to the public domain' under the Act of March 2, 1889, 25 Stat. 896, § 21,5 while six separate reservations were carved out of the remainder, id., §§ 1-6. Section 2 set apart the Rosebud Reservation, encompassing what were later organized as three full counties (Todd, Mellette, and Tripp), a major portion of Gregory County, and a small portion of Lyman.6 This reservation, as originally delimited, contained over 3.2 million acres.
6
Around the turn of the century, the 'familiar forces' to which we referred in DeCoteau v. District County Court, led to demands to open up the Reservation.7 A provision in the Indian Department Appropriation Act, Mar. 3, 1901, 31 Stat. 1077, provided:
7
'(T)he Secretary of the Interior be, and he is hereby, authorized, in his discretion, to negotiate, through any United States Indian inspector, agreements with any Indians for the cession to the United States of portions of their respective reservations or surplus unallotted lands, any agreements thus negotiated to be subject to subsequent ratification by Congress.'
8
Shortly thereafter Inspector James McLaughlin was instructed by the Commissioner of Indian Affairs to begin 'negotiations with the Indians of the Rosebud reservation, in South Dakota, for the cession of the unallotted eastern portion of their reserve.' Letter dated Mar. 19, 1901, from W. A. Jones, Commissioner, Office of Indian Affairs, Department of Interior. Following meetings with members of the Tribe during the spring and summer of 1901, Inspector McLaughlin obtained the written consent of three-fourths of the male Indian adults to the cession of some 416,000 acres of unallotted land in Gregory County for the sum of $1,040,000, subject to congressional ratification.8 The negotiated Agreement, however, was never ratified,9 'because of the fact that it provided that the Government should pay for the lands outright . . ..' 38 Cong.Rec. 1423 (1904) (remarks of Rep. Burke).10
9
What is important for our purposes is the undisputed fact that the 1901 Agreement, had it been ratified by Congress, would have disestablished that portion of the Rosebud Reservation which lay in Gregory County. Inspector McLaughlin explained to the Tribe that '(t)he cession of Gregory County' by ratification of the Agreement 'will leave your reservation a compact, and almost square tract, and would leave your reservation about the size and area of Pine Ridge Reservation.'11 It is conceded that his description was correct; the effect and intent of the 1901 Agreement, if ratified, would have been to change the Reservation boundaries. As we noted in DeCoteau v. District County Court, 420 U.S., at 445, 95 S.Ct., at 1093, in construing virtually identical language: 'The Agreement's language . . . was precisely suited to this purpose (of disestablishment).' In this Agreement, therefore, we have unlike the situation in Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973) an unmistakable baseline purpose of disestablishment.
10
An examination of the legislative processes which resulted in the 1904 Act convinces us, as it did the lower courts, that this purpose was carried forth and enacted. Because of the history of the 1901 Agreement, the 1904 Act cannot, and should not, be read as if it were the first time Congress had addressed itself to the diminution of the Rosebud Reservation.
11
In 1903, new bills were introduced, and subsequently reported from committee in both chambers of Congress, which proposed 'to adopt a new policy in acquiring lands from the Indians (by) provid(ing) that the lands shall be disposed of to settlers . . ., and to be paid for by the settlers, and the money to be paid to the Indians only as it is received . . . from the settlers.'12 The Senate bill, S. 7390, passed the Senate in February, 36 Cong.Rec. 2748 (1903), but the 57th Congress expired before the House could give it consideration. In line with the changes in S. 7390, which related to the method of payment, Inspector McLaughlin was subsequently instructed to go to the Rosebud Reservation to negotiate a new agreement.13 He explained to the Rosebud Tribe: 'I am here to enter into an agreement which is similar to that of two years ago, except as to the manner of payment . . .. You will still have as large a reservation as Pine Ridge after this is cut off.'14
12
Inspector McLaughlin failed to get three-fourths of the adult male Indians to consent to this new method of payment, although he did obtain the consent of a majority, provided that the price to homesteaders be raised from $2.50 to $2.75 per acre. Agreement of August 10, 1903.15 However, as Inspector McLaughlin had explained to the Tribe,16 Congress understood that it was not bound by the three-fourths consent requirement of the 1868 Treaty with the Sioux Nation. In Lone Wolf v. Hitchcock, 187 U.S., at 566, 568, 23 S.Ct., at 221, 222, this Court, dealing with the validity of a cession of tribal lands enacted in contravention of a treaty requiring three-fourths Indian consent, held:
13
'The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress . . ..
14
'. . . In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation.'
15
Although Inspector McLaughlin failed to garner the signatures of three-quarters of the Indians in consent of the proposed changes, Congress understandably relied on this holding as authorizing it to diminish unilaterally the Reservation boundaries.
16
In examining congressional intent, there is no indication that Congress intended to change anything other than the form of, and responsibility for, payment. In recommending ratification of the 1901 Agreement, as modified, the accompanying House Report stated:
17
'The purpose of this bill is to ratify and amend an agreement made with the Rosebud Indians in South Dakota by Inspector James McLaughlin, dated September 14, 1901, providing for the cession to the United States of the unallotted portion of their lands in Gregory County, S. Dak., and opening the same to settlement and entry under the homestead and town-site laws.
18
'There is no question but what the Indians have no use for the land that is proposed to be ceded by this bill; that the tract is only a very small portion of the Rosebud Reservation, and is really only a corner of the reservation, which will be left compact and in a square tract and a reservation about equal in size to the Pine Ridge Reservation, in South Dakota.'17
19
On the floor of the House, Congressman Burke, the 1904 Act's sponsor, in discussing the changes in the Agreement since 1901, made clear that the new bill was concerned only with the responsibility for payment, 38 Cong.Rec. 1423 (1904):
20
'Mr. BURKE. . . . In 1901 a treaty was entered into with the Rosebud Indians on the part of the United States, by which the Indians agreed to sell to the Government this land for $2.50 per acre. That treaty was transmitted to Congress, and because of the fact that it provided that the Government should pay for the lands outright and then take the chance of the Treasury being reimbursed by disposing of the lands to settlers, it never got further than through the Committee on Indian Affairs, which unanimously reported it favorably. It was never given consideration in the House.
21
'Toward the concluding days of the last session of Congress a new bill was prepared, substantially as this bill now provides, and that bill provided that the lands should be ceded by the Indians to the Government, disposed of to settlers under the provisions of the homestead law, the price to be fixed at $2.50 an acre, as was provided in the original treaty. . . . This bill is substantially the same as the bill which I have just referred to . . ..'
22
The bill itself, as introduced and passed by both Houses, incorporated the entire text of the 1903 Agreement, which itself followed the 1901 Agreement except that: (1) the Indians were not guaranteed any consideration for the land except with respect to the 16th and 36th sections (school sections), but were to be paid only as the lands were actually sold to settlers; (2) the United States did not guarantee to find purchasers but agreed only to 'act as trustee for said Indians to dispose of said lands.'18 In particular, the 1904 Act incorporated verbatim the language of immediate cession of the 1901 Agreement:
23
'The said Indians belonging on the Rosebud Reservation, South Dakota, for the consideration hereinafter named, do hereby cede, surrender, grant, and convey to the United States all their claim, right, title, and interest in and to all that part of the Rosebud Indian Reservation now remaining unallotted, situated within the boundaries of Gregory County . . .' 33 Stat. 256.
24
As in DeCoteau v. District County Court, 420 U.S., at 445, 95 S.Ct., at 1093, this language is 'precisely suited' to disestablishment.
25
Petitioner, however, objects that a 'cession' requires bilateral consent, and the failure of Inspector McLaughlin to gain the approval of three-quarters of the male adult Indians vitiates any 'cession.' As a matter of strict English usage, petitioner is undoubtedly correct; 'cession' refers to a voluntary surrender of territory or jurisdiction, rather than a withdrawal of such jurisdiction by the authority of a superior sovereign. But as Mr. Justice Holmes (then Judge) commented, we are not free to say to Congress: 'We see what you are driving at, but you have not said it, and therefore we shall go on as before.' Johnson v. United States, 163 F. 30, 32 (CA1 1908). Congress was simply repeating verbatim language from a bill ratifying the 1901 Agreement, which had made the proper use of the word 'cession' because the Agreement had been approved by the Tribe. The use of the word 'cession' in the 1904 Act, which was not consented to by the required extraordinary majority of the Tribe, does not make the meaning of the Act ambiguous as between diminution of the Reservation boundaries on the one hand, and merely opening up designated lands for settlement by non-Indians, on the other. The word is technically misused, but the meaning is quite It was intended to accomplish, in 1904, precisely what it was intended to accomplish in 1901. Congress was under no misapprehension that the required portion of the Tribe had in fact approved the treaty. It knew that while a majority of the Tribe had approved it, the required extraordinary majority had not; but it had determined nonetheless to go ahead and accomplish the same result unilaterally as the Agreement would have accomplished bilaterally.19
26
The 'bill provided that the lands should be ceded by the Indians to the Government . . ..' 38 Cong.Rec. 1423 (1904) (remarks of Rep. Burke). It is clear that Congress was relying on Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903), in making this unilateral declaration. There is nothing in the changed method of payment, or the failure to obtain a three-quarters vote from the Indians, which indicates that the clear intent of the 1901 Agreement to diminish the Reservation boundaries had changed between 1901 and 1904.20 The Tribe, moreover, was eventually paid for the land, supra, at 588 n. 3.
27
This implied continuity in purpose from 1901 to 1904 does not, however, stand alone in indicating congressional intent. Section 4 of the 1904 Act, 33 Stat. 258, provides, in pertinent part:
28
'(S)ections sixteen and thirty-six of the lands hereby acquired in each township shall not be subject to entry, but shall be reserved for the use of the common schools and paid for by the United States at two dollars and fifty cents per acre, and the same are hereby granted to the State of South Dakota for such purpose . . ..'
29
When North and South Dakota were admitted into the Union, § 10 of the admitting Act, Act of Feb. 22, 1889, 25 Stat. 679, provided, in pertinent part:
30
'(U)pon the admission of each of said States into the Union sections numbered sixteen and thirty-six in every township of said proposed States . . . are hereby granted to said States for the support of common schools . . .: Provided, That the sixteenth and thirty-sixth sections embraced in permanent reservations for national purposes shall not, at any time, be subject to the grants . . . of this act, nor shall any land embraced in Indian, military, or other reservations of any character be subject to the grants . . . of this act until the reservation shall have been extinguished and such lands be restored to, and become a part of, the public domain.'
31
The language of § 10 is mandatory: 'nor shall' the 16th and 36th sections of lands within Indian reservations 'be subject to the grants . . . until the reservation shall have been extinguished . . ..' While Congress would have had the power to establish other grants, cf. 43 U.S.C. § 856, the legislative history, in this case, demonstrates that Congress 'included the provision to implement the grant in the enabling act and for no other reason.' 521 F.2d, at 101.21 Both the House and Senate Reports explicitly noted that the 'school sections' provision of what became the 1904 Act 'is in conformity with the guarantee given to the State of South Dakota by Congress in the enabling act . . ..'22 Congress, therefore, clearly thought that it was acting pursuant to § 10 of the Act of February 22, 1889, and not sub silentio adding an additional grant for school lands located within a continuing reservation.23 The far more natural construction, then, is to read a congressional intent to disestablish Gregory County from the Rosebud Reservation, thereby making the sections available for disposition to the State of South Dakota for 'school sections' under § 10 of the Act of February 22, 1889.24
32
That it was clearly understood, at least by the Executive Branch, that the 1904 Act, like the 1901 Agreement, contemplated a diminution of the Reservation, is apparent from the Rosebud Proclamation of May 13, 1904, 33 Stat. 2354. In accordance with the requirement of § 2 of the 1904 Act that the land would 'be disposed of under the general provisions of the homestead and townsite laws of the United States, and shall be opened to settlement and entry,' the Proclamation stated, in pertinent part:
33
'Whereas by an agreement between the Sioux tribe of Indians on the Rosebud Reservation, in the State of South Dakota, on the one part, and James McLaughlin, a United States Indian Inspector, on the other part, amended and ratified by act of Congress . . . the said Indian tribe ceded, conveyed, transferred, relinquished, and surrendered, forever and absolutely, without any reservation whatsoever, expressed or implied, unto the United States of America, all their claim, title, and interest of every kind and character in and to the unallotted lands embraced in the following described tract of country now in the State of South Dakota, . . .
34
'NOW, THEREFORE, I, THEODORE ROOSEVELT, President of the United States of America, by virtue of the power vested in me by law, do hereby declare and make known that all of the lands so as aforesaid ceded by the Sioux tribe of Indians of the Rosebud Reservation . . . will, on the eighth day of August, 1904, at 9 o'clock a. m., in the manner herein prescribed and not otherwise, be opened to entry and settlement and to disposition under the general provisions of the homestead and townsite laws of the United States.' (Emphasis supplied.)
35
The opening portion of the Proclamation is an unambiguous, contemporaneous statement, by the Nation's Chief Executive, of a perceived disestablishment of Gregory County. It reflects, we believe, the clear import of the congressional action in the 1904 Act.
36
In sum, an examination of the process leading up to the enactment of the 1904 Act, as well as the language and legislative history, leads us, as it led the Court of Appeals and the District Court, to the firm conclusion that congressional intent was to exclude Gregory County from the Rosebud Reservation.25
37
Although the subsequent 'jurisdictional history,' DeCoteau v. District County Court, 420 U.S., at 442, 95 S.Ct., at 1091, is not entirely clear, the single most salient fact is the unquestioned actual assumption of state jurisdiction over the unallotted lands in Gregory County since the passage of the 1904 Act, see 375 F.Supp., at 1084; Amended Complaint ¶ 21.26 Since state jurisdiction over the area within a reservation's boundaries is quite limited, 18 U.S.C. § 1151; McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832), the fact that neither Congress nor the Department of Indian Affairs has sought to exercise its authority over this authority is a favor entitled to weight as a part of the 'jurisdictional history,'27 The longstanding assumption of jurisdiction by the State over an area that is over 90% area, or to challenge the State's exercise of use, not only demonstrates the parties' understanding of the meaning of the Act, but has created justifiable expectations which should not be upset by so strained a reading of the Acts of Congress as petitioner urges.28 We are simply unable to conclude that the intent of the 1904 Act was other than to disestablish.
III
38
Having determined that the 1904 Act carried forth the intent to disestablish which was unquestionably manifested in the 1901 Agreement, our examination of the 1907 and the 1910 Acts is made easier. None of the parties really disputes that the intent of the three Acts was the same.29 Because the later Acts do vary in some respects, however, we shall explain briefly why we find a continuity of intent through the 1907 and the 1910 Acts.30
39
The 'familiar forces' at work pressing for the opening of Indian lands did not cease with the cession of Gregory County. By late 1906, Congressman Burke was preparing a bill dealing with the 'sale of that part of the reservation located in Tripp County.'31 Inspector McLaughlin was instructed to proceed to the Rosebud Reservation to negotiate an agreement for land in Tripp County which when 'ceded should be disposed of under the general provisions of the homestead and townsite laws of the United States,' and he was given suggested terms, 'similar to those in the disposal of the ceded lands in Gregory County . . .'32 Inspector McLaughlin's negotiations produced virtually the same result as in 1904. A 1907 Agreement, signed by a majority, but not by three-fourths, of the adult male Indians, provided that the Indians 'do hereby cede, grant, and relinquish to the United States all claim, right, title, and interest in and to all that part of the Rosebud Indian Reservation (in Tripp and Lyman Counties), except such portions thereof as have been, or may hereafter be, allotted to Indians.'33 The Secretary of the Interior recommended that Congress ratify the Agreement, Letter from E. A. Hitchcock, supra, n. 33, and the Senate Committee on Indian Affairs reported a ratification bill out, S.Rep. No. 6831, 59th Cong., 2d Sess. (1907). By this time, however, the House had already passed a second bill introduced by Congressman Burke which did not incorporate the Agreement, 41 Cong.Rec. 3103-3105 (1907) (H.R. 24987), although it did substantially incorporate the terms of the Agreement, as noted by Congressman Burke, id., at 3104:
40
'The bill is substantially in accordance with an agreement which has just been made with the Indians, signed by (a majority). . . . It is along the line of the bill which passed in the Fifty-eighth Congress for the sale of that portion of this same reservation that is located in Gregory County.
41
'. . . They will have left, after this land is disposed of, a reservation that is substantially 50 miles square . . .'34
42
The operative language of the bill, subsequently passed by the Senate without debate, and enacted into law, 34 Stat. 1230, provided:
43
'(T)he Secretary of the Interior be, and he is hereby, authorized and directed, as hereinafter provided, to sell or dispose of all that portion of the Rosebud Indian Reservation in South Dakota (in Tripp and Lyman Counties), except such portions thereof as have been, or may hereafter be, allotted to Indians . . ..'
44
As the parties recognize, the substance of the 1907 Act is identical to the 1904 Act. Section 2 provides for the disposition of lands under the 'general provisions of the homestead and town-site laws,' while § 3 specifies land purchase prices, with the proviso that 'any lands remaining unsold after the said lands have been opened to entry for seven years may be sold to the highest bidder for cash, without regard to the above minimum limit of price.'35 Section 6 provides for the purchase by the United States of sections 16 and 36 of the lands in each township and their transfer to South Dakota for 'the use of the common schools.'36 Sections 5 and 7 provide that the United States is to act as trustee for the Indians to dispose of the lands and to collect and dispense the proceeds.37
45
In virtually all respects, then, except for the operative language in § 1 replacing the Agreement language, the 1907 Act is a functional twin of the 1904 Act. And, as the legislative comments make clear, supra, at 607-608, the change in § 1 language was not intended to modify or change the purposes or operation of the 1904 Act.38 We agree with the Court of Appeals' conclusion, 521 F.2d, at 104:
46
'Nothing in the language of the 1907 Act or in the surrounding circumstances and legislative history indicates a change in that congressional determination to alter the reservation boundaries which we have found in the 1904 Act.'
47
The 1907 Act, like the 1904 Act which preceded it, disestablished the land in Tripp and Lyman Counties from the Rosebud Reservation.
48
The pressures for more had not yet expended themselves with the passage of the 1907 Act. In late 1908, Senator Gamble submitted a new bill authorizing the sale and disposition of a portion of the surplus and unallotted lands in Mellette County and in a strip located in the eastern part of Todd County, S. 7379, 43 Cong.Rec. 65 (1908). The accompanying Senate Report noted, in proposing the opening to settlement of an area comprising about 900,000 acres, that '(t)he present area of the Rosebud Indian Reservation aggregates 1,800,000 acres.' S.Rep. No. 887, 60th Cong., 2d Sess., 1 (1909) (emphasis supplied).39 The school-sections provision was again included in the bill, 'to be paid for by the Government in conformity with the provisions of the act admitting the State of South Dakota into the Union.' Id., at 2.40 Senator Gamble was unable to have the Senate consider the bill before the term of Congress expired, and Inspector McLaughlin was once again dispatched to conduct negotiations with the Rosebud Tribe concerning the Gamble bill.41 This time, he did not seek to negotiate an agreement with the Indians, but reported back to the Secretary of the Interior the 'practically unanimous' concurrence of the Indians 'in the opening of the northern strip, provided the two tiers of townships in the eastern part of Meyer (sic) County remain a part of the diminished reservation.'42
49
New bills were introduced similar in purpose to the original Gamble bill.43 The Secretary of the Interior recommended to Congress that the bill open only Mellette County, and not the eastern part of Todd County, and that the bill also include a provision subjecting the land to be opened 'for a period of twenty-five years to all the laws of the United States prohibiting the introduction of intoxicants into the Indian country.'44 These changes were made in S. 183, see S.Rep. No. 68, 61st Cong., 2d Sess. (1910). The Report noted, id., at 2-4:
50
'The present area of the Rosebud Indian Reservation aggregates about 1,800,000 acres. The lands proposed to be opened to settlement under the provisions of this bill embrace an area of about 830,000 acres. . . .
51
'. . . It also provides that the Secretary of the Interior, in his discretion, may permit Indians who have allotments within the area proposed to be opened to relinquish such allotments and to receive in lieu thereof allotments anywhere within the reservation proposed to be diminished.
52
'Sections 16 and 36 of the lands in each township are not to be disposed of, but are reserved for the use of the common schools of the State, and these lands are to be paid for by the Government in conformity with the provisions of the act admitting the State of South Dakota into the Union. . . .
53
'Although Congress has full power to enact legislation of this character without the consent of the Indians, it was felt the Indians should be fully advised as to the provisions of the pending measure and their views should be asked in regard thereto.'
54
The bill was passed by the Senate on January 17, 1910, 45 Cong.Rec. 1065-1066, 1075 (1910), and the House Committee on Indian Affairs decided to adopt the Senate bill, its Report noting:
55
'The Rosebud Indian Reservation when set aside as a separate reservation under the Sioux act of 1889 contained something over 3,000,000 acres of land. (Then follows a description of the 1904 Act and the 1907 Act, observing that the 1907 Act was 'substantially in the same form as the bill now under consideration . . .')
56
'The area comprised in the present bill is about 800,000 acres . . .. There will still be left a reservation containing about 1,000,000 acres, and as the Indians have all been allotted there is no occasion for continuing a reservation larger than it will be when Mellette County is disposed of.'45
57
The bill then passed the House with amendments, id., at 5473 (1910), and, after conference to reconcile differences in the House and Senate bills not material here, the bill became law on May 30, 1910.46
58
The 1910 Act is substantially similar to the 1907 Act, and uses identical operative language authorizing and directing the Secretary of the Interior 'to sell and dispose of all that portion of the Rosebud Indian Reservation (in present day Mellette County) . . . except such portions thereof as have been or may be hereafter allotted to Indians . . ..' 36 Stat. 448. Because of the substantive similarity of the Acts, no useful purpose would be served in recounting the similar provisions contained in the 1910 Act. Two new provisions, however, do warrant mention. The first is a proviso in § 1, stating:
59
'(A)ny Indians to whom allotments have been made on the tract to be ceded may, in case they elect to do so before said lands are offered for sale, relinquish same and select allotments in lieu thereof on the diminished reservation.'
60
The proviso, on its face, is a strong indication of the continuing intent to disestablish the affected areas, first manifested in the 1901 Agreement. The second is the provision in § 10 of the 1910 Act, included at the suggestion of the Secretary of the Interior, subjecting the opened land 'for a period of twenty-five years to all the laws of the United States prohibiting the introduction of intoxicants into the Indian country.' As there existed, in 1910, an outstanding prohibition against the introduction of intoxicants into 'Indian country,' see Act of July 23, 1892, 27 Stat. 260, the most reasonable inference from the inclusion of this provision is that Congress was aware that the opened, unallotted areas would henceforth not be 'Indian country,' because not in the Reservation.47
61
These added provisions, as well as the clear legislative history of the 1910 Act, reflect strongly the continued intent to diminish the Reservation boundaries. We conclude that the 1910 Act continued the policies of the prior two Acts, and Mellette County was thereby detached from the Reservation.
IV
62
The intent of Congress in the 1904, the 1907, and the 1910 Acts was to change the boundaries of the original 1889 Rosebud Reservation. Much has changed since then, and if Congress had it to do over again it might well have chosen a different course. But, as we observed in DeCoteau v. District County Court, 420 U.S., at 449, 95 S.Ct., at 1095: '(O)ur task here is a narrow one. . . . (W)e cannot remake history.'48
63
Affirmed.
64
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice STEWART join, dissenting.
65
The Court holds today that in 1904, 1907, and 1910, Congress broke solemn promises it had made to the Rosebud Sioux Tribe and took from them, without any guarantee of compensation, three-quarters of their reservation. Although it was suggested at argument, Tr. at Oral Arg. 18-20, that the only consequence of such a holding would be to preclude the Tribe from continuing to exercise the jurisdiction granted to it by its approved constitution and bylaws,1 in fact much more is at stake. This case involves not just the rights of the Tribe, but also the rights of approximately 2,000 Indians living in the disputed area, and the right of the United States to continue to administer the disputed area as part of the Rosebud Reservation.2 See Part IV, infra. In addition, the ramifications of today's decision may extend to a large number of other reservations throughout the Nation. See ibid. I therefore feel constrained to explain at length why the decision, is, in my view, wholly unjustifiable.
66
Until today, the effect on reservation boundaries of Acts disposing of surplus reservation land was well settled. The general rule, entitled to 'the broadest possible scope,' is that in interpreting these Acts 'legal ambiguities are resolved to the benefit of the Indians.' DeCoteau v. District County Court, 420 U.S. 425, 447, 95 S.Ct. 1082, 1094, 43 L.Ed.2d 300 (1975). Congressional intent therefore must be 'clear' before this Court will find that a reservation established by Congress (or the Executive) was disestablished. Mattz v. Arnett, 412 U.S. 481, 505, 93 S.Ct. 2245, 2258, 37 L.Ed.2d 92 (1973). Applying these principles, the Court has found disestablishment when Congress ratified a treaty by which Indians agreed to sell all interest in part or all of a reservation, DeCoteau v. District County Court, supra, or when Congress employed express words of termination, Mattz v. Arnett, supra, at 504 n. 22, 93 S.Ct., at 2258 (dictum). But when, as here, Congress merely 'opened' a reservation that is, made reservation lands available to non-Indians and acted as a sales agent on behalf of the Indians the reservation boundaries have been held to be unaffected. Mattz v. Arnett, supra; Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962). In DeCoteau, the Court clearly distinguished the two situations, observing:
67
'(A purchase-and-sale Act) is not a unilateral action by Congress but the ratification of a previously negotiated agreement, to which a tribal majority consented. (It) does not merely open lands to settlement; it also appropriates and vests in the tribe a sum certain . . . in payment for the express cession and relinquishment of 'all' of the tribe's 'claim, right, title, and interest,' in the unallotted lands. The statute in Mattz, by contrast, benefited the tribe only indirectly, by establishing a fund dependent on uncertain fature sales of its land to settlers.' 420 U.S, at 448, 95 S.Ct., at 1094.
68
Today, however, the Court obliterates this distinction, and, by holding against the Tribe when the evidence concerning congressional intent is palpably ambiguous, erodes the general principles for interpreting Indian statutes.
69
* What is perhaps most striking about the Rosebud Acts, in light of the interpretation the Court places upon them, is the absence of any express provision disestablishing the Reservation. As we observed in Mattz: 'Congress has used clear language of express termination when that result is desired.' 412 U.S., at 504 n. 22, 93 S.Ct., at 2258. We cited three examples in Mattz: 15 Stat. 221, which stated that 'the Smith River reservation is hereby discontinued'; 27 Stat. 63, which stated that 'a portion of the Colville Indian Reservation . . . is hereby, vacated and restored to the public domain'; and 33 Stat. 218, enacted just two days before the first of the Rosebud Acts, which stated that 'the reservation lines of the said Ponca and Otoe and Missouria Indian reservations . . . are hereby abolished.' The very Act that created the Rosebud Reservation provides yet another example, for in that Act Congress expressly 'restored to the public domain' part of the Great Sioux Reservation. Act of Mar. 2, 1889, § 21, 25 Stat. 896. And other examples abound.3
70
The Acts in question contain no similar language. The Act of April 23, 1904, 33 Stat. 254, is peculiarly drafted statute. In substance, it is no different from the statutes considered in Mattz and Seymour; it opens lands on the Reservation to white settlers, guarantees to the Indians the proceeds from the sale of the lands, but does not commit the United States to purchasing the land.4 In form, however, the Act 'amended and modified' and then 'ratified' the 1901 Agreement between Inspector McLaughlin and the Rosebud Sioux in which the Tribe agreed to sell the lands in question to the United States for a lump sum; this Agreement had been rejected by the Congress in 1902. The 'amendments' which Congress unilaterally inserted obviously were substantial, since they transformed the transaction from a DeCoteau-type purchase to a Mattz-type 'opening.' But because the ratification format was used, the 1904 Act contains language from the 1901 Agreement which provided that the 'Indians belonging on the Rosebud Reservation, South Dakota, for the consideration hereinafter named, do hereby cede, surrender, grant, and convey to the United States all their claim, right, title, and interest' in the unallotted lands in Gregory County.
71
In DeCoteau we stated that this language, when contained in an agreement approved by the Indians and ratified by Congress, is 'precisely suited,' 420 U.S., at 445, 95 S.Ct., at 1093, to terminating a reservation. But I cannot agree with the Court, ante, at 597, that the language is equally well suited to disestablish the Reservation here. Its usage may simply mean that Congress found that working from an earlier document in this case the 1901 Agreement was easier than drafting a new law. Whereas in DeCoteau the key phrase expressed the Indians' understanding of what they were surrendering and the Government's understanding of what it was acquiring, here the Indians had not agreed to this transaction and the Government disclaimed any intent to purchase anything other than school lands, see n. 4, supra. Indeed, as the Court concedes, ante, at 597, as a matter of English usage the words 'cede, surrender, grant, and convey,' make no sense in the context of an 'agreement' to which the seller has not assented. Thus the Court ultimately rests its decision on an asserted ability to "see what (Congress is) driving at," even though Congress has "not said it." Ibid.
72
The 1907 and 1910 Acts are far simpler for present purposes. They contain neither words of cession nor words of termination. They simply 'authorized and directed' the Secretary of the Interior 'to sell or dispose of' the specified lands 'under the general provisions of the homestead and town-site laws of the United States.' Act of Mar. 2, 1907, §§ 1, 2, 34 Stat. 1230; Act of May 30, 1910, §§ 1, 2, c. 260, 36 Stat. 448. These statutes are virtually identical to the law construed in Seymour v. Superintendent, which also 'authorized and directed' the Secretary 'to sell or dispose of' specified lands 'under the provisions of the homestead laws.' Act of Mar. 22, 1906, §§ 1, 3, c. 1126, 34 Stat. 80-81. They are quite similar to the Act at issue in Mattz which 'declared' specified lands 'to be subject to settlement, entry, and purchase under the laws of the United States granting homestead rights and authorizing the sale of mineral, stone, and timber lands.' Act of June 17, 1892, 27 Stat. 52. They bear no resemblance, however, to the statutes cited in Mattz as examples of 'clear language of express termination.'
II
73
Since congressional intent must be unambiguous before we can conclude that Congress terminated part of an Indian reservation, the absence of any express provision to this effect in the Rosebud Acts strongly militates against the interpretation the Court places on those Acts. But I need not rely on congressional silence alone eloquent as it may be to reject the Court's interpretation. For both the text of the Acts and the circumstances surrounding their enactment affirmatively point to the opposite conclusion.
A.
74
The text of the Acts provides numerous indications that Congress did not intend to remove the opened areas from the Reservation. First, the Acts granted the Indians a variety of rights in those areas. All three Acts, for example, permitted Indians with allotments in the counties to be opened to retain their allotments,5 and the 1907 and 1910 Acts also allowed certain Indians without allotments in these counties to secure allotments there.6 All three Acts also granted the Indians a beneficial interest in all the opened lands, since the Acts simply made the United States 'trustee for (the) Indians to dispose of said lands.'7 And the 1904 and 1910 Acts authorized the Executive, before opening the counties to settlers, to reserve some lands for Indian schools, religious missions, and service agencies.8 Of course, it is possible that Congress intended to remove the opened counties from the Reservation while leaving the Indians with a host of rights in the counties. But this interpretation of the statutes is surely strained, especially since nothing in the legislative history indicates that such an anomalous result was desired. Thus, it is far more sensible to view these grants to the Indians as evidence that Congress did not intend to terminate the Reservation immediately.
75
This interpretation is supported by other provisions in the Acts as well. In the 1907 and 1910 Acts, for example, Congress directed that payments received from sale of the lands to be opened were to be deposited 'to the credit of the Indians belonging and having tribal rights on the Rosebud Reservation.'9 If the Rosebud Acts also removed the opened counties from the Reservation, then the members of the Tribe living in Gregory County, opened in 1904, were not entitled to share in the proceeds of the 1907 or 1910 sales, and the members of the Tribe living in Tripp County, opened by the Act of 1907, were not entitled to the 1910 proceeds at the very least.10 Again, it is possible that Congress intended this result. But, absent contrary evidence, it is far more reasonable to assume that Congress meant for all members of the Tribe living on the original Reservation to profit from the sales, since prior to the Rosebud Acts they all had equal rights in the opened lands. Thus, the manner in which Congress defined the class of beneficiaries in the 1907 and 1910 Acts indicates that Congress believed that the Indians living in the opened counties still 'belonged' to the Reservation after the lands were opened.
76
Finally, all the statutes contain an important guide to interpretation that the Court ignores. Each Act states, in almost identical terms, that 'nothing in this 'agreement shall be construed to deprive the . . . Indians of the Rosebud Reservation, South Dakota, of any benefits to which they are entitled under existing treaties or agreements, not inconsistent with the provisions of this agreement."11 These provisions constitute clear congressional commands to interpret the Rosebud Acts so as to minimize conflicts with the Treaty of 1889. Yet the Court ignores these provisions and maximizes the conflict, by construing the Acts to limit not just the Rosebud Sioux's land use, but also their jurisdiction.12
B
77
The Court's construction of the Rosebud Acts is also untenable when the Acts are placed in historical context. Just as we held in Mattz that the statute at issue there was to be interpreted 'from the overview of the earlier General Allotment Act of 1887, 24 Stat. 388,' 412 U.S., at 496, 93 S.Ct., at 2253, so, too, must the Rosebud Acts be construed from this perspective. As we observed in Mattz:
78
'(The policy of the General Allotment Act) was to continue the reservation system and the trust status of Indian lands, but to allot tracts to individual Indians for agriculture and grazing. When all the lands had been allotted and the trust expired, the reservation could be abolished. Unallotted lands were made available to non-Indians with the purpose, in part of promoting interaction between the races and of encouraging Indians to adopt white ways.' Ibid. (footnote omitted).
79
This policy reflected Congress' attempt 'to reconcile the Government's responsibility for the Indians' welfare with the desire of non-Indians to settle upon reservation lands.' DeCoteau v. District County Court, 420 U.S., at 432, 95 S.Ct., at 1087. Because the 'familiar forces' id., at 431, 95 S.Ct., at 1086, at work on Congress demanded land for settlers, Congress opened the reservations. But because these forces were not overly concerned with the niceties of reservation boundaries, the reservation status of the opened areas was preserved until the trust period expired, to insure federal protection of the Indians while they were being 'civilized' through contacts with white settlers. Thus, to interpret the Rosebud Acts as terminating three-fourths of the Rosebud Reservation is to set them at war with Congress' general policy toward Indians at the time the Acts were approved.
III
80
The Court ultimately rests its construction of the Act on an analysis of their legislative history. While there may be occasional passages in the history that suggest an intent to terminate,13 I cannot agree that such an intent is established with anything approaching the requisite clarity.
81
In the first place, the legislative history of the Rosebud Acts is extraordinarily sparse. The 1904 Act, which the Court properly regards as the crucial Act, was introduced by Representative Burke of South Dakota on January 19, 1904, 38 Cong.Rec. 902-903; was reported out of the Committee on Indian Affairs, which Mr. Burke chaired, two days later, id., at 1010; and passed the House on February 1, id., at 1469, after a debate that consumes only six pages in the Congressional Record, id., at 1423-1429.14 The bill was transmitted to the Senate the same day; was reported out of the Committee chaired by Senator Gamble of South Dakota three days later, id., at 1601; and was called up, amended, and approved by the Senate without debate on April 18, id., at 4988.15 The House concurred in the Senate amendments the following day without any discussion. Id., at 5155. The 1907 Act received even less congressional attention. It was approved within one month after it was introduced without any debate in the Senate, 41 Cong.Rec. 3323 (1907), and with a debate in the House that occupies only one page in the Record, id., at 3104.16 Only the 1910 Act was seriously debated by Congress, and these debates focused almost exclusively on the method by which the opened lands would be distributed to white settlers. 45 Cong.Rec. 1066-1071, 5456-5473 (1910).
82
In light of the brevity of the debates, it is not surprising that there is a paucity of relevant materials. The Court finds just two quotations from the debates, ante, at 596, 608, and three quotations from the Committee Reports, ante, at 595, 611, 612, that directly bear on the disestablishment issue.17 What the Court cannot find, however, is particularly telling. Unlike the debates in Mattz which revealed that 'the establishment of the reservation . . . was viewed as a mistake and an injustice,' 412 U.S., at 500, 93 S.Ct., at 2255, there were no expressions of hostility toward the existence or size of the Rosebud Reservation. Nor were there any statements indicating that Congress intended to deviate from its general policy of preserving reservations or to abandon its role as guardian of the Indians living in the opened counties. Indeed, although Congress was aware that the Rosebud Acts initiated a new policy toward surplus lands18 one which removed the Government from the role of buyer and the Indians from the role of seller at no point in the debates did anyone discuss the consequences of this change on Reservation boundaries.
83
The poverty of the Court's analysis is best revealed by its treatment of the history of the crucial 1904 Act. The Court begins with 'the undisputed fact that the 1901 Agreement, had it been ratified by Congress, would have disestablished that portion of the Rosebud Reservation which lay in Gregory County.' Ante, at 591. Its review of the legislative history then leads it to conclude that 'there is no indication that Congress intended to change anything other than the form of, and responsibility for, payment.' Ante, at 594-595. But the fact that Congress did not expressly repudiate all of the consequences of an Agreement to which it was not a party and which it had refused to ratify hardly establishes that Congress affirmatively intended those consequences to result from the very different transaction it devised in 1904.19 It is at least equally plausible that Congress did not explain the effect of the 1904 Act because it assumed that the Act would have precisely the same effect as earlier nonpurchase surplus land Acts such as those considered in Mattz: The lands would be opened and the reservations preserved. Nor is the fact that Congress adopted the format of the 1901 Agreement especially probative, since this may have been done simply out of convenience.
84
Ultimately, what the legislative history demonstrates, as cocounsel for the State has aptly concluded, is that Congress manifested an 'almost complete lack of . . . concern with the boundary issue.'20 The issue was of no great importance in the early 1900's as it was commonly assumed that all reservations would be abolished when the trust period on allotted lands expired. There was no pressure on Congress to accelerate this timetable, so long as settlers could acquire unused land. Accordingly, Congress simply did not focus on the boundary question. Its indifference is perhaps best manifested by the fact that in legislation concerning the Reservation enacted immediately subsequent to the Rosebud Acts, Congress at times referred to the opened counties as part of the Reservation, and at times referred to them as no longer part of the Reservation.21 For the Court to find in this confusion and indifference a 'clear' congressional intent to disestablish the Reservation is incomprehensible.
IV
85
The most obvious and immediate consequence of today's decision is jurisdictional. Even though the people of South Dakota have expressly declined to assume jurisdiction over Indian country,22 from now on crimes (or torts) committed by the Indians on nontrust land in the opened counties will be within the jurisdiction of the State. This will create an 'impractical pattern of checkerboard jurisdiction,' in which 'law enforcement officers . . . will find it necessary to search tract books in order to determine whether criminal jurisdiction over each particular offense . . . is in the State or Federal Government.' Seymour v. Superintendent, 368 U.S., at 358, 82 S.Ct., at 428. In addition, even while on their trust lands, the almost 2,000 enrolled Indians in the opened counties will be generally subject to 'state law otherwise applicable to all citizens of the State,' Mescalero Apache Tribe v. Jones, 411 U.S. 145, 149, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 113 (1973), even if the same law could not be applied to Reservation Indians because it would 'interfere with reservation self-government or would impair a right granted or reserved by federal law,' id., at 148, 93 S.Ct., at 1270. This is reason enough to be troubled by today's decision.
86
But beyond these jurisdictional consequences, the holding today places a grave cloud over the property rights of both the Tribe and the Indians living off the newly contracted Reservation. With respect to the Tribe, 4,600 acres in the opened counties were returned to it pursuant to the Indian Reorganization Act of 1934, 48 Stat. 984, after the Secretary found, in the words of § 3 of the Act, that these were 'the remaining surplus lands of (an) Indian reservation' opened before June 18, 1934. But if the opened counties were not part of the Reservation, then the Secretary's right to return the land to the Tribe is at least open to question.23 More seriously, the Indians living on trust lands in the opened counties have assumed that § 2 of the Reorganization Act, which extended the trust period on 'Indian lands,' applied to their property. But if these counties were not part of a reservation, this assumption is dubious at best, since § 8 of the Act states that the Act shall not 'be construed to relate to Indian holdings of allotments . . . upon the public domain outside of the geographic boundaries of any Indian reservation now existing . . ..' Should it be determined that the trust period was not extended, the State of South Dakota could claim crushing amounts of back taxes.
87
Finally, today's decision may result in a sharp reduction in the federal aid available to members of the Rosebud Tribe living off the Reservation. The Bureau of Indian Affairs has been administering the opened counties as part of the Reservation, see n. 2, supra, and in requesting appropriations for the Reservation Indians has included Indians living in the opened counties, Brief for United States as Amicus Curiae 37-38. In addition, we have been advised by the Association on American Indian Affairs, et al., as amici curiae, that the Rosebud Tribe has received a large amount of federal aid pursuant to a variety of federal programs. Brief 31-39. The Association reports that in the past the Tribe has been able to expend these monies for programs in the opened as well as the closed counties, because the federal agencies have viewed all the counties as part of the Reservation. Ibid. But in light of today's decision, the Tribe's ability to use federal funds to benefit tribal members living in these counties is in serious doubt.24
88
Nor are these potential consequences limited to the Rosebud Reservation. The Rosebud Acts were described by their sponsors as the beginning of a new policy with respect to surplus lands. See n. 18, supra. During the decade following the enactment of the first Rosebud Act, Congress passed 21 other statutes that opened surplus reservation lands to settlers.25 If the Rosebud Acts diminished the Rosebud Reservation, then the boundaries of more than a score of other reservations must be in doubt.
89
Because I can find no principled justification for inflicting manifold injuries on the Rosebud Sioux Indians and for jeopardizing the rights of numerous other tribes, I respectfully dissent.
1
Act of Apr. 23, 1904, 33 Stat. 254; Act of Mar. 2, 1907, 34 Stat. 1230; Act of May 30, 1910, c. 260, 36 Stat. 448.
2
The written consent of a majority of the Tribe was obtained prior to the 1904 and 1907 Acts, infra, at 593, 607; no written consent was obtained prior to the 1910 Act, but the "practically unanimous" concurrence of the Indians was reported, Infra, at 610.
3
The Tribe was eventually paid for all of the land opened to settlement in the three Acts, with the exception of some 4,600 acres, which were returned to the Tribe pursuant to an 'Order of Restoration' dated January 12, 1938. See Indian Reorganization Act, 48 Stat. 984.
4
The focus of our inquiry is congressional intent. This Court has pointed in its prior decisions to factors from which intent is inferred. The dissent erroneously seizes upon several factors and presents them as apparent absolutes, post, at 617-618. This, however, misapprehends the nature of our injury, which is to inquire whether a congressional determination to terminate is 'expressed on the face of the Act or (is) clear from the surrounding circumstances and legislative history.' Mattz v. Arnett, 412 U.S. 481, 505, 93 S.Ct. 2248, 2258, 37 L.Ed.2d 92 (1973). Mattz, upon which the dissent relies, did not set forth absolutes. Rather, it first examined the history of the Reservation, id., at 485-494, 93 S.Ct., at 2248-2252, and then examined the enactment in light of this history and other surrounding circumstances. While in footnote 22 of Mattz we referred to examples of cases in which Congress had used 'clear language of express termination' in particular situations, the notion that such express language in an Act is the only method by which congressional action may result in disestablishment is quite inconsistent with the just-quoted language from the text of Mattz. The dissent nonetheless relies on what it perceives to be an absence of any express disestablishment language as that which is 'perhaps most striking about the Rosebud Acts . . ..' Post, at 618. Even then, however, the dissent concedes as it must, that this 'most striking' fact is not a fact at all with respect to the crucial 1904 Act: There Congress used cession language which DeCoteau v. District County Court, 420 U.S. 425, 445, 95 S.Ct. 1082, 1093, 43 L.Ed.2d 300 (1975), found to be 'precisely suited' to disestablishment.
5
This termination of Reservation status was agreed to by three-fourths of the adult male Indians on the Great Sioux Reservation, S.Ex.Doc. 51, 51st Cong., 1st Sess., 234, 242 (1890).
6
Under § 12, 25 Stat. 892,
'at any time after lands have been allotted to all the Indians of any tribe as herein provided, or sooner, if in the opinion of the President it shall be for the best interests of said tribe, it shall be lawful for the Secretary of the Interior to negotiate with such Indian tribe for the purchase and release by said tribe, in conformity with the treaty or statute under which said reservation is held of such portions of its reservation not allotted as such tribe shall, from time to time, consent to sell, on such terms and conditions as shall be considered just and equitable between the United States and said tribe of Indians, which purchase shall not be complete until ratified by Congress . . ..'
This reproduced, verbatim, the language of the General Allotment Act, § 5, Act of Feb. 8, 1887, 24 Stat. 389.
7
See H.R.Rep. No. 486, 56th Cong., 1st Sess., 1 (1900): 'The people are anxious that this particular part of the reservation be opened and opportunity given for settlement and development of that region of the State. . . .
'The Committee is informed the Indians are willing to treat for a cession of the lands in question.'
8
Agreement, dated Sept. 14, 1901, between James McLaughlin, on the part of the United States, and the Sioux Tribe of Indians belonging on the Rosebud Reservation:
'ARTICLE I. The said Indians belonging on the Rosebud Reservation, South Dakota, for the consideration hereinafter named, do hereby cede, surrender, grant, and convey to the United States all their claim, right, title, and interest in and to all that part of the Rosebud Indian Reservation now remaining unallotted, situated within the boundaries of Gregory County, South Dakota . . ..
'ART. II. In consideration of the land ceded, relinquished, and conveyed by Article I of this agreement, the United States stipulates and agrees to expend for and pay to said Indians, in the manner hereinafter provided, the sum of one million and forty thousand (1,040,000) dollars.' S. Doc. No. 31, 57th Cong., 1st Sess., 28 (1901).
9
In 1902, a ratification bill passed the Senate and was reported favorably in the House. 35 Cong.Rec. 5024 (1902); H.R.Rep. No. 2099, 57th Cong., 1st Sess. (1902). The bill was never given any consideration on the floor of the House.
10
See also S.Rep. No. 3271, 57th Cong., 2d Sess., 2 (1903); 36 Cong.Rec. 2748 (1903) (remarks of Sen. Gamble). Congressman Burke and Senator Gamble were the sponsors of the various bills concerning the Rosebud Reservation. As the Court of Appeals noted, and as all parties appear to agree: 'The problem in the Congress was not jurisdiction, title, or boundaries. It was, simply put, money.' 521 F.2d 87, 94.
11
Proceedings of a Council with the Indians of Rosebud Reservation, Sept. 5, 1901, in S.Doc. No. 31, 57th Cong., 1st Sess., 12 (1901); see also Proceedings of a Council with the Indians of the Ponca Creek District, Rosebud Reservation, Apr. 13, 1901, in S.Doc. No. 31, supra, at 8-10.
12
H.R.Rep. No. 3839, 57th Cong., 2d Sess., 1-2 (1903) (to accompany H.R. 17467); S.Rep. No. 3271, 57th Cong., 2d Sess., 2 (1903) (to accompany S. 7390).
13
Letter from the Commissioner of Indian Affairs to James McLaughlin, U.S. Indian Inspector, June 30, 1903, App. 461-462:
'In a joint request to the Department dated April 4, 1903, the members of the South Dakota delegation in Congress . . . asked that an Inspector be detailed to proceed to the Rosebud Indian reservation, in South Dakota, for the purpose of negotiating a new agreement with the Indians thereof for the cession of the unallotted portion of their reserve embraced in Gregory County, along the lines proposed in Senate Bill No. 7390 . . ..
'The essential features of said S. 7390, with which you are already familiar, are as follows:
'(1) That instead of paying the Indians the lump sum of $1,040,000 for the surplus Gregory County lands as provided in the agreement of September 14, 1901, the lands be disposed of to settlers under the provisions of the homestead and town-site laws, excepting sections 16 and 36 or the equivalent thereof, at not less than $2.50 per acre, the proceeds arising from such sale to be paid to the Indians.'
In light of Lone Wolf v. Hitchock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903), the House and Senate Committees understood that consent of the Indians to the change was not mandatory, but 'in view of the (1868) treaty stipulation . . . it would be better to require the treaty as amended to be accepted by the Indians before it becomes effective.' H.R.Rep. No. 3839, supra, at 2; S.Rep.No. 3271, supra, at 2.
14
Minutes of Council held at Rosebud Agency, S.D. with the Sioux Indians belonging on the Rosebud Reservation 21-22 (July 30, 1903); see also id., at 37 (Aug. 8, 1903); id., at 50 (Aug. 10, 1903).
15
The operative language of the new Agreement was identical to that contained in the 1901 Agreement:
'The said Indians belonging on the Rosebud Reservation, South Dakota, for the consideration hereinafter named, do hereby cede, surrender, grant, and convey to the United States all their claim, right, title, and interest in and to all that part of the Rosebud Indian Reservation now remaining unallotted, situated without the boundaries of Gregory County . . ..'
16
Minutes of Council held at Rosebud Agency, S.D., with the Sioux Indians belonging on the Rosebud Reservation 21-22 (July 30, 1903); see also id., at 37 (Aug. 8, 1903); id., at 50 (Aug. 10, 1903).
17
H.R.Rep. No. 443, 58th Cong., 2d Sess., 1, 3 (1904) (accompanying H.R. 10418). The Report, id., at 4, in discussing Lone Wolf v. Hitchcock, supra, considered whether ratification of the amended Agreement, which had not received the approval of three-fourths of the adult male Indians, was appropriate, and concluded that it was:
'It appearing, therefore, that more than three-fourths of the male adult Indians signed the original treaty, that more than a majority were willing to sell at a less (sic) price than provided in this bill, and fact that the Department recommends the passage of the measure, provided the Indians can be insured of a lump sum equal to $1,040,000, the amount mentioned in the original treaty, and the committee having fixed a price that it is believed wise and no insure this amount it is thought wise and no hardship or even injustice to the Indians to have such a measure passed, and for that reason recommend the passage of the bill.'
18
Despite this 'uncertain sum' proviso, § 2 of the Act, 33 Stat. 258, suggests that Congress viewed this land as disestablished immediately: 'That all lands herein ceded and opened to settlement under this Act, remaining undisposed of at the expiration of four years from the taking effect of this Act, shall be sold and disposed of for cash, under rules and regulations to be prescribed by the Secretary of the Interior, not more than six hundred and forty acres to any one purchaser.'
19
Congress was explicitly aware that it was acting pursuant to the holding in Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903). See H.R.Rep. No. 443, supra, n. 17, at 3-4; 38 Cong.Rec. 2829, 2832 (1904) (remarks of Rep. Burke).
20
We noted in DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975), the fact that Congress had there ratified a sale for a sum certain. These two facts Indian consent and a sum-certain payment aided us in determining that congressional intent was to terminate the Reservation. But, as the Court of Appeals in the instant case recognized, '(t) he determination of disestablishment . . . rests upon congressional intent, as to which the method of payment, whether lump-sum or otherwise, is but one of many factors to be considered.' 521 F.2d, at 102. DeCoteau rested upon precisely such a determination, and neither the sum certain nor the consent was considered dispositive one way or the other. The statutory language discussed in DeCoteau is similar to the language of the 1904 Act. While the 1904 Act, to be sure, lacks a sum-certain payment as well as approval by three-fourths of the adult male Indians, it, in common with DeCoteau, starts from the form of an agreement, which was fully explained to the Rosebud Tribe both in 1901 and in 1904. The congressional recognition 'that the Agreement could not be altered,' 420 U.S., at 438, 95 S.Ct., at 1089, was not present in this case for the simple reason that between the Sisseton-Wahpeton Agreement and the 1904 Rosebud Act, Lone Wolf v. Hitchcock, supra, had been decided. Nor is there any 'clear retreat from previous congressional attempts to vacate the . . . Reservation in express terms,' DeCoteau v. District County Court, supra, at 448, 95 S.Ct., at 1095, as there was in Mattz v. Arnett. Finally, as is discussed, infra, at 603-605, as in DeCoteau, the State has exercised unquestioned jurisdiction over the disputed areas since the passage of the enactment an indication of the intended purpose of the Act that was not present in Mattz v. Arnett, 412 U.S., at 505, 93 S.Ct., at 2258. Moreover, other factors, not present in DeCoteau, press for a finding of disestablishment. Here, for example, unlike the situation in DeCoteau, we are not faced with an Act which, if it disestablished the area under question, would terminate the entire reservation. 420 U.S., at 446-447, 95 S.Ct., at 1094. Considered together, we feel that those disestablishment factors present in DeCoteau but not present here are counterbalanced by the disestablishment factors present both here and in DeCoteau as well as those factors present here, but not in DeCoteau.
21
See e. g., 35 Cong.Rec. 3187 (1902) (remarks of Sen. Gamble):
'Under the provisions of the enabling act authorizing the admission of the State of South Dakota into the Union, sections 16 and 36 in every township were reserved for school purposes. This provision did not apply to permanent Indian reservations, but became operative when the Indian title was extinguished and the lands restored to and became a part of the public domain.'
38 Cong.Rec. 1423 (1904):
'Mr. FINLEY. . . . Then as I understand the gentleman, he bases the wisdom or equity for this provision upon the enabling act admitting South Dakota into the Union. Mr. BURKE. Yes. Mr. FINLEY. And not otherwise? Mr. BURKE. No.'
22
H.R.Rep. No. 3839, 57th Cong., 2d Sess., 2 (1903); S.Rep.No. 3271, 57th Cong., 2d Sess., 2 (1903); H.R.Rep. No. 443, 58th Cong., 2d Sess., 2 (1904); S.Rep.No. 651, 58th Cong., 2d Sess., 2 (1904). See also n. 40, infra.
23
Moreover, as discussed in n. 24, infra, under Minnesota v. Hitchcock, 185 U.S. 373, 22 S.Ct. 650, 46 L.Ed. 954 (1902), it was a possibility that the lands in Gregory County, although disestablished from the Reservation by the 1904 Act, were not thereby converted into 'public lands.' Section 10 of the Act of February 2, 1889 would not, in that case, apply to the lands even though disestablished from the Reservation.
24
Petitioner urges that the 'school sections' provision indicated that Congress was not disestablishing the county, since, upon disestablishment, the sections would have automatically passed to South Dakota under § 10 of the Act of February 22, 1889. We disagree. Section 4 of the 1904 Act not only provides for the grants of the sections to the State, but also for the method and amount of payment. The section, therefore, is not superfluous. See also n. 23, supra.
The United States, as amicus curiae, argues that Minnesota v. Hitchcock, supra, supports the position of petitioner. Hitchcock, however does not deal with the question of whether the utilization of an explicit 'school sections' clause demonstrates that Congress must have intended the Reservation boundaries to have continued undiminished. Rather, the issue in Hitchcock was quite different: It dealt with whether ceded lands automatically became subject to an earlier Act's 'school sections' provision. The Court concluded that 'none of these ceded lands passed under the school grant to the State' because, due to a trust imposed upon them, they had a preceding status that precluded their becoming 'public lands.' 185 U.S., at 395, 401-402, 22 S.Ct., at 659, 661. This preceding status could exist even if the lands were disestablished from a reservation. United States v. Pelican, 232 U.S. 442, 449, 34 S.Ct. 396, 399, 58 L.Ed. 676 (1914); cf. Ash Sheep Co. v. United States, 252 U.S. 159, 166, 40 S.Ct. 241, 242, 64 L.Ed. 507 (1920). As recognized by the Court of Appeals, 'the fact that a beneficial interest is retained does not erode the scope and effect of the cession made, or preserve to the reservation its original size, shape, and boundaries.' 521 F.2d, at 102. The question of whether lands become 'public lands' under Hitchcock and Ash Sheep, is therefore, logically separate from a question of disestablishment. United States v. Pelican, supra. As the issue is not before us, we need not decide whether or not the lands became 'public lands.'
25
As noted by the Court of Appeals, 521 F.2d, at 102 n. 54:
'Congressional action with reference to Gregory County shortly after the passage of the 1904 Act also confirms the conclusions. By the Act of February 7, 1905, ch. 545, 33 Stat. 700, Congress granted settlers an extension of time in which to establish their residence upon the opened Gregory County lands. The title and the body of the Act contain the following language:
'lands which were heretofore a part of the Rosebud Indian Reservation within the limits of Gregory County, South Dakota.'
'33 Stat. 700 (Emphasis added). See S.Rep. No. 2760, 58th Cong., 3d Sess., 1 (1905); H.R. Rep. No. 4198, 58th Cong., 3d Sess., 1 (1905); 39 Cong.Rec. 1578 (1905) (remarks of Sen. Gamble).'
The 1905 Act, passed a short time after the 1904 Act by the same Congress, and dealing with the same subject matter, is additional evidence of the conngressional intent to disestablish Gregory County from the Rosebud Reservation in the 1904 Act. There are, moreover, references in the legislative history of the 1907 and 1910 Acts, discussed, infra, at 608, 609, and nn. 38, 39, and at 611, 612, which reinforce the conclusion that Congress, in 1904, disestablished Gregory County.
26
See also State v. White Horse, 231 N.W.2d 847 (S.D.1975). This factor, of course, applies with equal force to the counties affected by the 1907 Act and by the 1910 Act, infra, at 605-615.
27
As already noted, the District Court found that '(f)rom the time these acts were passed, these (four) counties have been treated as outside the Rosebud Sioux Reservation by the settlers, their descendants, the State of South Dakota and the federal courts.' 375 F.Supp., at 1084. This factual finding is unchallenged. Both parties rely on other post-Act indicia of jurisdictional assumption, but they are, at best, confusing and unenlightening. The Indian Reorganization Act of 1934, 48 Stat. 984, and the Department of Interior's reaction thereto, urged perhaps most fervently by the United States as amicus curiae, fail to establish with anything like clarity the view of Congress, or the Department of the Interior, in the 1930's, with respect to land affected by such Acts as the 1904 Act involved herein. Under § 3 of the Indian Reorganization Act, the Secretary of the Interior was authorized 'to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened . . .' 48 Stat. 984. Under § 8, however, it was stated that '(n)othing contained in this Act shall be construed to relate to Indian holdings of allotmernts or homesteads upon the public domain outside of the georgraphic boundaries of any Indian reservation now existing . . ..' 48 Stat. 986. Section 8, relied heavily upon by the United States in its amicus brief, on its face refers to nothing more than 'Indian holdings of allotments or homesteads' outside the boundaries of a reservation. This comports with the definition of 'Indian country' in 18 U.S.C. § 1151. In any case, no clear view on the part of the relevant agencies that land opened up under uncertain-sum agreements remained reservation land exists. Compare Interior Department Opinion, 54 I.D. 559, 560 (1934), with Opinion of Acting Solicitor, 56 I.D. 330, 333 (1938). As was observed, n. 24, supra, the question of whether lands became public lands is separate from the question of intent to disestablish boundaries. The relevant materials presented with respect to the Indian Reorganization Act of 1934 simply do not present any clear treatment of the scope of the Rosebud Reservation, and hence are of minimal utility in our examination. Nor do we have a history of 'repeated recognition of the reservation status of the land after (the 1904 Act) by the Department of the Interior and by Congress.' Mattz v. Arnett, 412 U.S., at 505, 93 S.Ct., at 2258. The material presented by the parties reveals no consistent, or even dominant, approach to the territory in question. In light of the clear assumption of jurisdiction over the past 70 years by the State of South Dakota of the territory now in dispute, and acquiescence by the Tribe and Federal Government, this sporadic, and often contradictory, history of congressional and administrative actions in other respects carries but little force.
28
Cf. Massachusetts v. New York, 271 U.S. 65, 87, 94, 46 S.Ct. 357, 360, 362, 70 L.Ed. 838 (1926); Martin v. Waddell, 16 Pet. 367, 411-412, 414, 418, 10 L.Ed. 997 (1842). A showing of long-standing assumption of jurisdiction is, in the related area of state boundary disputes, entitled to considerable weight. See Rhode Island v. Massachusetts, 4 How. 591, 639, 11 L.Ed. 1116 (1846); Louisiana v. Mississippi, 202 U.S. 1, 53-54, 26 S.Ct. 408, 423, 50 L.Ed. 913 (1906); Michigan v. Wisconsin, 270 U.S. 295, 308, 46 S.Ct. 290, 294, 70 L.Ed. 595 (1926); Massachusetts v. New York, supra, at 95, 46 S.Ct., at 363; Arkansas v. Tennessee, 310 U.S. 563, 569, 60 S.Ct. 1026, 1030, 84 L.Ed. 1362 (1940). In United States v. Stone, 2 Wall. 525, 537, 17 L.Ed. 765 (1865), involving a boudnary between the Delaware Indian Reservation and land set aside for a United States Government military post, this Court stated: 'In the case of private persons, a boundary surveyed by the parties and acquiesced in for more than thirty years, could not be made the subject of dispute by reference to courses and distances called for in the patents under which the parties claimed, or on some newly discovered construction of their title deeds. We see no reason why the same principle should not apply in the present case . . ..'
29
While, of course, urging that there was no congressional intent to disestablish, petitioner assets that '(t)he substance of all three statutes is the same, as is much of the language.' Brief for Petitioner 40. And again, id., at 41:
'The 1904 Act differs in format from the 1907 and 1910 Acts but not in substance . . . As a result of these and other substantive changes (between the 1901 Agreement and the 1904 Act), the 1904 Act, in legal effect, as well as language, is the same as the 1907 and 1910 Acts. In all three statutes, the land was opened for sale to settlers with the proceeds credited to the Indians only as received.'
30
The dissenters feel that the 1907 and 1910 Acts 'are far simpler for present purposes' since '(t)hey contain neither words of cession nor words of termination.' Post, at 620. But the dissenters also recognize, as did the parties, that the 1904 Act is 'properly regard(ed) as the crucial Act . . ..' Post, at 626. The 1907 and the 1910 Acts must be considered in context, and an important part of that context is the 1901 Agreement and the 1904 Act.
31
Reference to letter of Nov. 22, 1906, from Rep. Burke to the Department of the Interior, Office of Indian Affairs, in letter of Dec. 5, 1906, from Commissioner F. E. Leupp, to Inspector James McLaughlin. Bills were introduced in December 1906, 41 Cong.Rec. 15 (1906) (Burke bill, H.R. 20547); id., at 50-51 (Gamble bill, S. 6618).
32
Letter of Dec. 5, 1906, from Commissioner F. E. Leupp, supra. Inspector McLaughlin was told that it was 'but right to the Indians also that you should explain to them' that Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903), 'vests in Congress the right to open their lands without their consent; that the desire of the Department in sending you to talk the matter over with the Indians is to obtain from them their views of the terms on which the opening ought to be made . . .'
33
Letter from E. A. Hitchcock, Secretary of the Interior, to the Chairman, Committee on Indian Affairs, House of Representatives, Feb. 14, 1907 (enclosing Agreement), in H.R.Rep. No. 7613, 59th Cong., 2d Sess., 4 (1907).
34
In response to a question which inquired whether 'the provisions of the treaty (have) been inserted in this bill,' Congressman Burke replied: 'I may say to the gentleman that they have been.' 41 Cong.Rec. 3104 (1907).
35
See the discussion, n. 18, supra, of the 1904 Act's comparable provision.
36
The discussion, supra, at 599-601, with respect to the 'school sections' provision of the 1904 Act, applies equally here.
37
This, too, is substantively identical to the 1904 Act, supra, at 596.
38
In one particular, the language of the 1907 Act reinforces our conclusion with respect to the 1904 Act. The 1907 Act, 34 Stat. 1230, was to open 'all that portion of the Rosebud Indian Reservation in South Dakota lying south of the Big White River and east of range twenty-five west of the sixth principal meridian . . .' This description would encompass Gregory County as well as Tripp County, unless the 1904 Act had disestablished Gregory County from the Reservation. See H.R.Rep. No. 7613, 59th Cong., 2d Sess., 1 (1907) (the bill 'affects all that portion of the reservation east of range 25 of the fifth principal meridian south of the Big White River . . .'); S.Rep. No. 6838, 59th Cong., 2d Sess., 1 (1907).
39
Mellette and Todd Counties, the two counties unaffected by the 1904 and 1907 Acts, compose approximately 1.8 million acres, whereas the original (1889) Reservation encompassed somewhat over 3.2 million acres. A letter, dated January 26, 1909, from James Garfield, Secretary of the Interior, to Senator Gamble, S.Rep. No. 887, 60th Cong., 2d Sess., 3 (1909), clearly noted the perceived disestablishment of major portions of the Rosebud Reservation by the prior two Acts:
'The Rosebud Reservation has been reduced very rapidly during the last few years, and intimations have reached this department from trustworthy sources that there is danger that the land available for allotment may be exhausted if too large a reduction is made at this time. I do not believe, therefore, that the strip of land on the east of the present diminished reservation should be opened yet.'
40
See also 45 Cong.Rec. 1068 (1910) (colloquy between Sen. Gamble and Sen. Crawford):
'MR. GAMBLE. . . . (T)he Government agreed to reserve these lands and to pay for them, not only by law, but under the enabling act admitting the State of South Dakota to the Federal Union.
'MR. CRAWFORD. Sections 16 and 36, to which the Senator refers, are held from the settler and are given to the State to keep good the pledge made to the State by the Government under the enabling act when the State was admitted into the Union . . ..'
41
The Secretary of the Interior believed that 'the views of the Indians should be procured before the bill is finally acted on,' although recognizing 'the fact the Congress can enact legislation of this character without the consent of the Indians interested . . ..' Letter dated Jan. 26, 1909, from James Garfield, Secretary of the Interior, to Sen. Gamble, in S.Rep. No. 887, supra, at 3.
42
Letter dated Apr. 29, 1909, from James McLaughlin to the Secretary of the Interior. For the negotiations with the Indians, see Transcript of Council held at Rosebud Agency, Mar. 11, 1909; Proceedings of Council held with the Indians of the Rosebud Reservation, Apr. 21 and 26, 1909.
43
See 44 Cong.Rec. 132 (1909) (S. 183); id., at 2013 (H.R. 9544); 45 Cong.Rec. 10 (1909) (H.R. 12437).
44
Letter dated Jan. 13, 1910, from R. A. Ballinger, Secretary of the Interior, to Sen. Clapp. S.Rep. No. 68, at 5.
45
H.R.Rep. No. 332, 61st Cong., 2d Sess., 2 (1910) (accompanying H.R. 12437) (emphasis supplied).
46
Act of May 30, 1910, c. 260, 36 Stat. 448; 45 Cong.Rec. 6437 (1910) (Conference Report passes House); id., at 6326 (Conference Report passes Senate).
47
See id., at 5464 (colloquy between Rep. Bartholdt and Rep. Butler):
'MR. BARTHOLDT. But if the lands are allotted it is no longer an Indian reservation.
'MR. BUTLER. If the lands are allotted, it will be no longer an Indian reservation . . . It is where, as I understand, the Indian has
always lived and where he is going to live, and I believe in keeping the sale of liquor out of his neighborhood.'
Under Dick v. United States, 208 U.S. 340, 359, 28 S.Ct. 399, 405, 52 L.Ed. 520 (1908), Congress was entitled to attach liquor prohibitions, reasonable in duration, on non-Indian land which Indians were likely to frequent. Congress explicitly was adding this provision under the authority of Dick. See Letter date Jan. 13, 1910, from R. A. Ballinger, Secretary of the Interior, to Rep. Burke.
The petitioner, as well as the United States, as amicus curiae, relies on In re Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848 (1905). As suggested by the United States, Brief for United States as Amicus Curiae 40 n. 28:
'Although the courts below suggested that the provision would be unnecessary if the Reservation were continued . . ., that suggestion is erroneous. As the debates show, 45 Cong.Rec. 5460-5464 (1910), members of Congress were fully aware of this Court's decision in In re Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848, holding that Indian allottees were subject to state liquor laws.'
This reliance is misplaced. Heff did not deal with the question of the sale of liquor to Indian allottees on a reservation where liquor was forbidden by the Act of July 23, 1892, 27 Stat. 260. Rather, Heff dealt with the sale of liquor to Indian allottees under the Act of January 30, 1897, 29 Stat. 506, which prohibited the sale of liquor (without restriction on location) to Indians. Heff, in short, dealt with an Act which prohibited the sale of liquor, anywhere, based on the status of a person, while the prohibition of sales on Indian country under the 1892 Act applied to areas, regardless of the status of the person. (Insofar as is relevant, the 1892 Act states that no 'intoxicating liquor or liquors of whatever kind shall be introduced, under any pretense, into the Indian country.') This distinction was recognized in Dick v. United States, supra, 208 U.S., at 352, 28 S.Ct., at 402, which, noting In re Heff, observed that the Indians involved in Dick were citizens of the United States, but then went on to discuss the 'Federal liquor statute forbidding the introduction of intoxicating drinks into the Indian country.' Thus, under the 1892 Act, as recognized in Dick, liquor was flatly prohibited from introduction into the Indian country, a prohibition which prevented sale to all persons. Indian country, however, did not apply to territory on which 'the Indian title had been extinguished, and over which and over the inhabits of which . . . the jurisdiction of the State . . .
was full and complete.' Dick v. United States, supra, at 352, 28 S.Ct., at 403. Land remaining within the boundaries of a reservation, of course, would not be subject to the 'full and complete' jurisdiction of the State. See Williams v. Lee, 358 U.S. 217, 223, 79 S.Ct. 269, 272, 3 L.Ed.2d 251 (1959). While, prior to the statutory definition in 18 U.S.C. § 1151, the defined areas of Indian country may have been a bit vague, see Seymour v. Superintendent, 368 U.S. 351, 357, 82 S.Ct. 424, 427, 7 L.Ed.2d 346 (1962), Dick was the most recent pronouncement on the subject at the time of the 1910 Act, and clearly defined Indian country with reference to state jurisdiction. See United States v. Pelican, 232 U.S. 442, 449, 34 S.Ct. 396, 399, 58 L.Ed. 676 (1914); Perrin v. United States, 232 U.S. 478, 482, 34 S.Ct. 387, 389, 58 L.Ed. 691 (1914) (discussing the congressional power 'to prohibit the introduction of intoxicating liquors into an Indian reservation . . .'); cf. United States v. Mazurie, 419 U.S. 544, 554-555, 95 S.Ct. 710, 716, 42 L.Ed.2d 706 (1975). The liquor provision in § 10 of the 1910 Act, accordingly, is a strong indication that Congress did not view the affected areas as 'Indian country,' but, rather, as disestablished from the Reservation.
48
The dissent speculates expansively on the possible adverse consequences of today's decision, post, at 630-625. Most, if not all, of these consequences involve issues not presented by this case. To the extent the members of the Rosebud Tribe are living on allotted land outside of the Reservation, they, too, are on 'Indian country,' within the definition of 18 U.S.C. § 1151, and hence subject to federal provisions and protections. Our decision in Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974), moreover, that federal benefits and programs shall be made available to tribal members living 'on or near' the reservation, surely diminishes the specter of a 'sharp reduction in the federal aid available to members of the Rosebud Tribe living off the reservation.' Post, at 631. Certainly, that effect is much less clear than it would have been in DeCoteau v. District County Court, where the entire reservation was extinguished. The combined effect of 18 U.S.C. § 1151 and Morton v. Ruiz, supra, is that many of the dissent's parade of horribles are nothing more than just that.
1
The constitution of the Rosebud Souix Tribe, approved by the Secretary of the Interior in 1935, App. 1396-1397, states in Art. I that '(t)he jurisdiction of the Rosebud Sioux Tribe . . . shall extend to the territory within the original confines of the Rosebud Reservation boundaries as established by the act of March 2, 1889 . . ..'
There is some confusion in the record concerning the jurisdictional history of the disputed area. At the conclusion of his lengthy opinion, the District Judge stated that 'the State of South Dakota has treated the (disputed) counties . . . as portions of the state over which the State of South Dakota can exercise jurisdiction since the passage of (the) acts.' 375 F.Supp. 1065, 1083 (SD 1974). But contrary to the Court's suggestion, ante, at 604-605, n. 27, this statement is hotly disputed insofar as it implies that the Tribe has conceded jurisdiction. The Tribe claims it 'has consistently exercised jurisdiction over Indians on all parts of the reservation.' Reply Brief for Petitioner 2b. The United States agrees, Brief for United States as Amicus Curiae 32 n. 22, and has provided a number of examples, id., at 23a-32a.
2
The United States reports that it has treated the disputed areas as part of the Reservation, and that it maintains or funds child-welfare programs, burial assistance, outpatient clinics, and housing in these areas. Id., at 37-38. See also Letter from the Acting Area Director, Aberdeen, S.D., Bureau of Indian Affairs, to Neil Proto, Dept. of Justice, Aug. 23, 1974, App. 1405-1409, detailing these services.
3
The National Indian Law Library's compilation of Allotment/Cession Statutes, Doc. No. 002279, contains 11 additional examples, taken from statutes enacted between 1888-1913.
4
The United States did agree, in § 4 of the Act, to purchase sections 16 and 36 of Gregory County and to grant these sections to the State for school purposes. The significance of this grant is discussed in n. 12, infra.
5
1904 Act, § 1, Art. I; 1907 Act, § 1; 1910 Act, § 1.
6
The 1907 Act provided in § 2 that before opening the lands the Secretary of the Interior 'may permit Indians who have an allotment within the Rosebud Reservation to relinquish such allotment and to receive in lieu thereof an allotment anywhere within said reservation, and he shall also allot one hundred and sixty acres of land to each child . . . belonging on the Rosebud Reservation who has not heretofore received an allotment.' The fact that these allotments were to be made before the county was opened to settlers indicates that they could be taken from the lands to be opened. See also H.R.Rep. No. 7613, 59th Cong., 2d Sess., 3 (1907) ('The bill further provides that . . . the Indians within the reservation may relinquish allotments and select allotments in any other portion of the reservation, including the tract affected by this bill'). (Emphasis added.) The 1910 Act is even clearer in this regard; it excludes from the opened county lands that 'have been or may be hereafter allotted to Indians.' (Emphasis added.)
Significantly, the 1901 Agreement which, if ratified, would have partially terminated the Reservation, did not contain any provision for new or in-lieu allotments in the tract to be ceded.
7
1904 Act, § 6; 1907 Act, § 8; 1910 Act, § 11. See also United States v. Brindle, 110 U.S. 688, 693, 4 S.Ct. 180, 182, 28 L.Ed. 286 (1884). Although as the Court notes, ante, at 596-597, n. 18, Congress did attempt to assure that the beneficial interest eventually would be extinguished, the Acts contain no guarantee. Indeed, the Indians retained an interest in 4,600 acres until 1938 when these lands were restored to the Tribe.
8
1904 Act, § 2; 1910 Act, § 1 (second proviso). The 1910 Act in § 1 also reserved timberland to the Indians, although there was a dispute in Congress as to whether any such land existed. Compare 45 Cong.Rec. 5471 (1910) (remarks of Rep. Burke) with S.Rep. No. 68, 61st Cong., 2d Sess., 3 (1910). The provision in the 1904 Act reserving these lands was not contained in the original Agreement.
9
1907 Act, § 5; 1910 Act, § 7.
10
If the Rosebud Acts disestablished the Reservation, then arguably the Indians in Tripp County were not entitled to share in the 1907 proceeds either. By the time those proceeds were deposited 'to the credit of the Indians belonging and having tribal rights on the Rosebud bud Reservation,' Tripp County had already been opened and therefore, under the Court's view removed from the Reservation by Act and Presidential Proclamation. Under this view, the Indians living in Mellette County, opened in 1910, would not have been entitled to the proceeds from the 1910 sales.
11
1904 Act, § 1, Art. V; 1907 Act, § 8; 1910 Act, § 11.
12
The Court concludes that two other provisions in the Acts support its interpretation. First, it notes, ante, at 599-601, 608, that in all three Acts Congress agreed to purchase two sections of the opened counties for school purposes. See n. 4, supra. Under the enabling Act admitting the Dakotas to the United States, Act of Feb. 22, 1889, § 10, 25 Stat. 679, Congress granted these sections to the State when a reservation was to be 'extinguished and such lands (are) restored to, and becom(e) a part of, the public domain.' Based on ambiguous statements in the legislative history, e. g., H.R.Rep. No. 443, 58th Cong., 2d Sess., 2 (1904) (the school provisions are 'in conformity with . . . the enabling act'), the Court concludes that the grants in the Rosebud Acts were included "to implement the
grant in the enabling Act and for no other reason." Ante, at 600. But if that were true, the provisions in question would have been unnecessary, since the grant in the enabling act was self-executing. Minnesota v. Hitchcock, 185 U.S. 373, 392-393, 22 S.Ct. 650, 657-658, 46 L.Ed. 954 (1902). Indeed, in 1902 the House Committee on Indian Affairs had reached this conclusion with respect to the proposed bill ratifying the 1901 Agreement, and, accordingly, it had deleted the school provisions from the Senate version of the bill. H.R.Rep. No. 2099, 57th Cong., 1st Sess., 1 (1902). Since the Committee included school provisions in the subsequent Rosebud Acts, e. g., H.R.Rep. No. 443, supra, at 2, it apparently believed that the change in the nature of the transaction meant that Congress was no longer extinguishing the Reservation and restoring the land to the public domain. Nothing in the legislative history suggests, as the Court seems to imply, ante at 601 n. 24, that Congress thought it was accomplishing the former but not the latter.
Second, the Court notes, ante, at 613-615, that § 10 of the 1910 Act subjected the opened lands "to all the laws of the United States prohibiting the introduction of intoxicants into the Indian country." The Court reasons that if Congress believed the Reservation would remain intact this provision was unnecessary, since the Act of July 23, 1892, 27 Stat. 260, already prohibited the introduction of intoxicants into 'Indian country.' Ante, at 614 n. 47. But in 1910 the definition of 'Indian country' was unsettled, and Congress may have feared that patented land within a reservation was nevertheless not Indian country under Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471 (1877), because Indian title had been extinguished. Nothing in Dick v. United States, 208 U.S. 340, 28 S.Ct. 399, 52 L.Ed. 520 (1908), on which the Court relies, ante, at 614 n. 47, is to the contrary, as Dick involved ceded lands as to which the United States and the Indians had agreed federal laws would be applicable.
13
The statements that most clearly suggest an intent to terminate are fully intelligible only to those with a knowledge of the geography of the Reservation. For example, in the House Committee Report on the 1904 Act, the Committee stated:
'There is no question but what the Indians have no use for the land that is proposed to be ceded by this bill; that the tract is only a very small portion of the Rosebud Reservation, and is really only a corner of the Reservation, which will be left compact and in a square tract . . ..' H.R.Rep. No. 443, supra, at 3.
By consulting a map one discovers that without Gregory County the tract in question the Rosebud Reservation would be 'compact' and 'square.' See also 41 Cong.Rec. 3104 (1907) (remarks of Rep. Burke: 'They will have left, after this land is disposed of, a reservation that is substantially 50 miles square'); S.Rep. No. 68, 61st Cong., 2d Sess., 2 (1910) ('The present area of the Rosebud Indian Reservation aggregates about 1,800,000 acres'); H.R.Rep. No. 332, 61st Cong., 2d Sess., 2 (1910) ('There will still be left a reservation containing about 1,000,000 acres, and . . . there is no occasion for continuing a reservation larger than it will be when Mellette County is disposed of').
14
In the preceding session of Congress, Representative Burke had introduced an identical bill, 36 Cong.Rec. 2409 (1903), which was approved by his Committee two days later, id., at 2473, but never reached the House floor.
15
Senator Gamble had introduced a similar bill the preceding year, id., at 2434, had obtained Committee approval in two days, id., at 2498; and Senate approval, without debate six days later, id., at 2747-2748. He reintroduced the bill on January 25, 1904, 38 Cong.Rec. 1100, but the House bill was approved before the Senate could act on Senator Gamble's bill. See id., at 1877.
16
Representative Burke and Senator Gamble each had introduced similar bills in December 1909 41 Cong.Rec. 15, 50-51. After an agreement was reached between the Tribe and Inspector McLaughlin on January 21, 1907, Representative Burke introduced a new bill, id., at 1782. On February 14, 1907, the Office of Indian Affairs recommended that the agreement be approved (even though the Indians had not assented), and the bill was reported out of the House Committee that same day, id., at 3004. Two days later it passed the House. Id., at 3105.
On February 18, the Senate Committee sent to the Senate a substitute version of the 1906 Gamble bill. Id., at 3207. By that time, however, the House had already approved the second Burke bill, and the Senate amended and approved that bill on February 19, id., at 3323.
17
The Court also quotes some discussions bearing on the school lands and liquor law provisions. See n. 12, supra.
18
See, e. g., H.R.Rep. No. 443, 58th Cong., 2d Sess., 2 (1904) ('(T)hese bills present a new idea . . . and . . . will establish a new policy and be a departure from the policy that has long since prevailed').
19
Although the Court states that the "problem in the Congress (with respect to the 1901 Agreement) was not jurisdiction, title, or boundaries. It was, simply put, money," ante, at 591 n. 10, the historical evidence is not nearly so clear. In the Senate, the concern with the 1901 Agreement was not with the fact that the United States was expending money to acquire the lands, but with its failure to obtain reimbursement from settlers. After much debate, however, the Senate ultimately rejected an amendment that would have required settlers to purchase the opened lands from the United States, 35 Cong.Rec. 4971 (1902), and approved the agreement, id., at 5024. The House, on the other hand, never even debated the ratification bill, and thus we have no firsthand knowledge of the basis for the opposition in that body. All of the statements that the Court relies on were made by proponents of the 1901 Agreement in connection with the 1903 and 1904 bills. Ante, at 591, and n. 10. Moreover, the fact that the House apparently was unwilling to authorize the United States to purchase the lands and recoup the costs from the settlers suggests that money was not the sole concern.
20
Comment, New Town et al.: The Future of an Illusion, 18 S.D.L.Rev. 85, 117 (1973).
21
For example, in 1909 Congress appropriated funds for a mission '(o)n the Rosebud Reservation,' and included within this category a mission in Gregory County. 35 Stat. 809. On the other hand, a 1905 Act extending the time for settling in Gregory County referred to the lands as 'heretofore a part of the Rosebud Indian Reservation.' C. 545, 33 Stat. 700. The modern statutes appear to be more consistent in labeling the opened counties as part of the Reservation. See 77 Stat. 349 (1963); 78 Stat. 560 (1964); 89 Stat. 577 (1975).
The subsequent treatment of the disputed counties by the Interior Department reflects a similar confusion as to the status of the counties. Each side has presented to this Court a number of instances in which the counties were referred to by Department personnel in terms favorable to their case. Compare Brief for United States as Amicus Curiae 33-38, 33a-41a, with Brief for Respondents 106-120. In the two instances in which Department officials have addressed the question directly, however they have concluded that the opened counties are part of the Reservation. 54 I.D. 559 (1934) (opinion of Commissioner of Indian Affairs on Restoration of Lands Formerly Indian to Tribal Ownership); App. 1398-1404 (memorandum of Field Solicitor, Aberdeen, S.D., Apr. 6, 1972).
22
At oral argument we were informed that in 1962 the people of South Dakota rejected by a referendum an Act of the legislature that would have granted the State jurisdiction over Indian country pursuant to §§ 6, 7, 67 Stat. 590. Tr. of Oral Arg. 10.
23
Arguably the Secretary acted properly so long as the lands were part of the Reservation at the time they were opened. See 56 I.D. 330 (1938). This was not the theory on which the Secretary proceeded, however, in ordering restoration. 54 I.D. 559 (1934).
24
For example, according to the United States, the Department of Housing and Urban Development, which has been making grants to the Tribe, will no longer be able to approve projects in the opened counties, since with respect to those counties the Tribe will no longer be a 'governmental entity' or 'public body' under 42 U.S.C. § 1460(h). Brief for United States as Amicus Curiae 38. The Department of Agriculture has already ruled, in light of the Court of Appeals decision, that money made available to the Tribe to acquire lands pursuant to 25 U.S.C. § 488, cannot be used in the opened counties. Brief for Association on American Indian Affairs et al. as Amici Curiae 36.
Of course, in holding that the opened counties are outside the Reservation, the Court does not necessarily preclude the Government or the Tribe from providing any aid to Indians in those counties. Cf. Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974).
25
National Indian Law Library, Allotment/Cession Statutes, Doc. No. 002279. Of these statutes, five were passed with the consent of the affected Indians; these five were enacted within a year after the first Rosebud Act.
In addition to the 21 post-Rosebud Act statutes, there are at least five pre-Rosebud Act laws which also opened surplus reservation land to settlers without Indian consent. There are also at least 15 pre-Rosebud Act laws which opened surplus land with consent.
| 12
|
430 U.S. 551
97 S.Ct. 1386
51 L.Ed.2d 631
NATIONAL GEOGRAPHIC SOCIETY, Appellant,v.CALIFORNIA BOARD OF EQUALIZATION.
No. 75-1868.
Argued Feb. 23, 1977.
Argued April 4, 1977.
Decided April 4, 1977.
Syllabus
Appellant Society, a nonprofit corporation with headquarters in the District of Columbia, which maintains two offices in California that solicit advertising for the Society's magazine but perform no activities related to the Society's mail-order business for the sale from the District of Columbia of maps, atlases, globes, and books, challenges the constitutionality of California's use tax, as applied to the Society's mail-order activities, which requires every retailer engaged in business in that State and making sales of tangible personal property for storage, use, or other consumption in that State to collect from the purchaser a use tax in lieu of the sales tax imposed on local retailers. Orders for the Society's sales items are mailed from California directly to appellant's headquarters on coupons or forms enclosed with announcements mailed to Society members and magazine subscribers or on order forms contained in the magazine. Held: California's imposition of the use-tax-collection liability on the Society's mail-order operation does not violate the Due Process Clause of the Fourteenth Amendment or the Commerce Clause since the Society's continuous presence in California in the two offices provides a sufficient nexus between the appellant and the State to justify imposition of the use-tax-collection liability as applied to appellant. The out-of-state seller appellant runs no risk of double taxation as the consumer's identification as a resident of the taxing State is obvious and appellant becomes liable for the tax only by failing or refusing to collect it from the resident consumer. Nor, contrary to appellant's contention, is it material that there is no relationship between the appellant's sales activity in California and the two advertising offices, for without regard to the nature of the offices' activities, they had the advantage of the same municipal services as they would have had if their activities had included assistance to the mail-order operations. Pp. 555-562.
16 Cal.3d 637, 128 Cal.Rptr. 682, 547 P.2d 458, affirmed.
Arthur B. Hanson, Washington, D. C., for appellant.
Philip M. Plant, Deputy Atty. Gen., San Francisco, Cal., for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Appellant National Geographic Society, a nonprofit scientific and educational corporation of the District of Columbia, maintains two offices in California that solicit advertising copy for the Society's monthly magazine, the National Geographic Magazine. However, the offices perform no activities related to the Society's operation of a mail-order business for the sale from the District of Columbia of maps, atlases, globes, and books. Orders for these items are mailed from California directly to appellant's Washington, D. C., headquarters on coupons or forms enclosed with announcements mailed to Society members and magazine subscribers or on order forms contained in the magazine. Deliveries are made by mail from the Society's Washington, D. C., or Maryland offices. Payment is either by cash mailed with the order or after a mailed billing following receipt of the merchandise. Such mail-order sales to California residents during the period involved in this suit aggregated $83,596.48.
2
California Rev. & Tax. Code § 6203 (West Sup.1976) requires every 'retailer engaged in business in this state and making sales of tangible personal property for storage, use, or other consumption in this state' to collect from the purchaser a use tax in lieu of the sales tax imposed upon local retailers. The California Supreme Court held that appellant is subject to the statute as a "retailer engaged in business in this state", because its maintenance of the two offices brings appellant within the definition under § 6203(a) that includes "(a)ny retailer maintaining . . . an office . . ." 16 Cal.3d 637, 642, 128 Cal.Rptr. 682, 685, 547 P.2d 458, 460-461 (1976). Section 6204 makes the retailer liable to the State for any taxes required to be collected regardless of whether he collects the tax.1 See Bank of America v. State Bd. of Equalization, 209 Cal.App.2d 780, 793, 26 Cal.Rptr. 348, 355 (1962).
3
The question presented by this case is whether the Society's activities at the offices in California2 provided sufficient nexus between the out-of-state seller appellant and the State as required by the Due Process Clause of the Fourteenth Amendment and the Commerce Clause to support the imposition upon the Society of a use-tax-collection liability pursuant to §§ 6203 and 6204, measured by the $83,596.48 of mail-order sales of merchandise from the District of Columbia and Maryland. The California Supreme Court held that the imposition of use-tax-collection liability on the Society violated neither Clause, 16 Cal.3d 637, 128 Cal.Rptr. 682, 547 P.2d 458 (1976).3 We noted probable jurisdiction. 429 U.S. 883, 97 S.Ct. 232, 50 L.Ed.2d 163 (1976). We affirm.
4
* All States that impose sales taxes also impose a corollary use tax on tangible property bought out of State to protect sales tax revenues and put local retailers subject to the sales tax on a competitive parity with out-of-state retailers exempt from the sales tax. H.R.Rep.No.565, 89th Cong., 1st Sess., 614 (1965). The constitutionality of such state schemes is settled. Henneford v. Silas Mason Co., 300 U.S. 577, 581, 57 S.Ct. 524, 526, 81 L.Ed. 814 (1937); Monamotor Oil Co. v. Johnson, 292 U.S. 86, 54 S.Ct. 575, 78 L.Ed. 1141 (1934).4
5
But the limitation of use taxes to consumption within the State so as to avoid problems of due process that might arise from the extension of the sales tax to interstate commerce, see, e. g., Nelson v. Sears, Roebuck & Co., 312 U.S. 359, 363, 61 S.Ct. 586, 588, 85 L.Ed. 888 (1941); Monamotor Oil Co. v. Johnson, supra, at 95, 54 S.Ct. at 578, does not avoid all constitutional difficulties. States necessarily impose the burden of collecting the tax on the out-of-state seller; the impracticability of its collection from the multitude of individual purchasers is obvious. Miller Bros. Co. v. Maryland, 347 U.S. 340, 343, 74 S.Ct. 535, 538, 98 L.Ed. 744 (1954). However, not every out-of-state seller may constitutionally be made liable for payment of the use tax on merchandise sold to purchasers in the State. The California Supreme Court concluded, based on its survey of the relevant decisions of this Court, that the 'slightest presence' of the seller in California established sufficient nexus between the State and the seller constitutionally to support the imposition of the duty to collect and pay the tax. The California court stated, 16 Cal.3d, at 644, 128 Cal.Rptr., at 686, 547 P.2d at 462:
6
'We are satisfied that from the above cited decisions the following principle can be distilled and we thus hold: Where an out-of-state seller conducts a substantial mail order business with residents of a state imposing a use tax on such purchasers and the seller's connection with the taxing state is not exclusively by means of the instruments of interstate commerce, the slightest presence within such taxing state independent of any connection through interstate commerce will permit the state interstate commerce will post on the seller the duty of collecting the use tax from such mail order purchasers and the liability for failure to do so.' (Emphasis supplied.)
7
Our affirmance of the California Supreme Court is not to be understood as implying agreement with that court's 'slightest presenceh standard of constitutional nexus. Appellant's maintenance of two offices in the State and solicitation by employees assigned to those offices of advertising copy in the range of $1 million annually, Tr. of Oral Arg. 6, establish a much more substantial presence than the expression 'slightest presence' connotes. Our affirmance thus rests upon our conclusion that appellant's maintenance of the two offices in California and activities there adequately establish a relationship or 'nexus' between the Society and the State that renders constitutional the obligations imposed upon appellant pursuant to §§ 6203 and 6204.5 This conclusion is supported by several of our decisions.
8
The requisite nexus was held to be shown when the out-of-state sales were arranged by the seller's local agents working in the taxing State, Felt & Tarrant Co. v. Gallagher, 306 U.S. 62, 59 S.Ct. 376, 83 L.Ed. 488 (1939); General Trading Co. v. Tax Comm'n, 322 U.S. 335, 64 S.Ct. 1028, 88 L.Ed. 1309 (1944), and in cases of maintenance in the State of local retail store outlets by out-of-state mail-order sellers. Nelson v. Sears, Roebuck & Co., supra; Nelson v. Montgomery Ward, 312 U.S. 373, 61 S.Ct. 593, 85 L.Ed. 897 (1941). In Scripto, Inc. v. Carson, 362 U.S. 207, 80 S.Ct. 619, 4 L.Ed.2d 660 (1960), the necessary basis was found in the case of a Georgia-based company that had '10 wholesalers, jobbers, or 'salesmen' conducting continuous local solicitation in Florida and forwarding the resulting orders from that State to Atlanta for shipment of the ordered goods,' Id., at 211, 80 S.Ct., at 621, although maintaining no office or place of business in Florida, and having no property or regular full-time employees there.
9
Standard Pressed Steel Co. v. Washington Rev. Dept., 419 U.S. 560, 95 S.Ct. 706, 42 L.Ed.2d 719 (1975), is also instructive. That case involved a direct tax upon the gross receipts of a foreign corporation resulting from sales to a State of Washington customer, and not imposition of use-tax-collection duties. Although 'a vice in a tax on gross receipts of a corporation doing an interstate business is the risk of multiple taxation . . .,' id., at 563, 95 S.Ct., at 709, see Monamotor Oil Co. v. Johnson, supra, a concern not present when only imposition of use-tax-collection duty is involved, Standard Pressed Steel held that maintenance in the taxing State of a single employee, an engineer whose office was in his Washington home and whose primary responsibility was to consult with the Washington-based customer regarding its anticipated needs for the out-of-state supplier's product, established a sufficient relation to activities within the State producing the gross receipts as to support imposition of the tax. It is particularly significant for our purposes in this case that the Court characterized as 'frivolous' the argument that the seller's in-state activities were so thin and inconsequential that the tax had no reasonable relation to the protection and benefits conferred by the taxing State, for the employee 'made possible the realization and continuance of valuable contractual relations between (the seller and its Washington customer).' 419 U.S., at 562, 95 S.Ct., at 708. Other fairly apportioned, nondiscriminatory direct taxes have also been sustained when the taxes have been shown to be fairly related to the services provided the out-of-state seller by the taxing State. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977); General Motors Corp. v. Washington, 377 U.S. 436, 84 S.Ct. 15648 12 L.Ed.2d 430 (1964); Northwestern Cement Co. v. Connesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959); Memphis Gas Co. v. Stone, 335 U.S. 80, 68 S.Ct. 1475, 92 L.Ed. 1832 (1948); Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 249, 85 L.Ed. 267 (1940).
10
The case for the validity of the imposition upon the out-of-state seller enjoying such services of a duty to collect a use tax is even stronger. See Norton Co. v. Illinois Rev. Dept., 340 U.S. 534, 537, 71 S.Ct. 377, 380, 95 L.Ed. 517 (1951). The out-of-state seller runs no risk of double taxation. The consumer's identification as a resident of the taxing State is self-evident. The out-of-state seller becomes liable for the tax only by failing or refusign to collect the tax from that resident consumer. Thus, the sole burden imposed upon the out-of-state seller by statutes like §§ 6203 and 6204 is the administrative one of collecting it. Compare McLeod v. Dilworth Co., 322 U.S. 327, 64 S.Ct. 1023, 88 L.Ed. 1304 (1944) (sales tax), with Scripto, Inc. v. Carson, supra, and General Trading Co. v. Tax Comm'n, supra. See also American Oil Co. v. Neill, 380 U.S. 451, 454-455, 85 S.Ct. 1130, 1132-1133, 14 L.Ed.2d 1 (1965).
11
Two decisions that have held fact patterns deficient to establish the necessary nexus to impose the duty to collect the use tax highlight the significance of the inquiry whether the out-of-state seller enjoys services of the taxing State. $Miller Bros. Co. v. Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744 (1954), struck down a Maryland assessment against a Delaware store near the border between the two States. The store had made over-the-counter sales to Maryland residents and occasionally shipped or delivered goods by truck into that State. The store advertised in Delaware by newspaper and radio, and some of these advertisements reached Maryland residents. These advertisements were sometimes supplemented with 'flyers' mailed to customers, some of whom lived in Maryland. The Court concluded that Maryland could not satisfy the due process requirement. In addition to the almost total lack of contacts between Maryland and the Delaware store Marylanders went to Delaware to make purchases, the seller did not go to Maryland to make sales the seller obviously could not know whether the goods sold over the counter in Delaware were transported to Maryland prior to their use. See Scripto Inc. v. Carson, supra, 362 U.S., at 212, 80 S.Ct., at 622.
12
National Bellas Hess, Inc. v. Illinois Rev. Dept., 386 U.S. 753, 87 S.Ct. 1389, 18 L.Ed.2d 505 (1967), presented the question in the case of an out-of-state seller whose only connection with customers in the taxing State was by common carrier or mail. Illinois subjected appellant Bellas Hess, a national mail-order house centered in Missouri, to use tax liability based upon mailorder sales to customers in that State. Bellas Hess owned no tangible property in Illinois, had no sales outlets, representatives, telephone listings, or solicitors in that State, and did not advertise there by radio, television, billboards, or newspapers. It communicated with potential customers by mailing catalogues throughout the United States, including Illinois, twice a year and occasionally supplemented this effort by mailing out 'flyers.' All orders for merchandise were mailed to Bellas Hess' Missouri plant, and the goods were sent to customers by mail or common carrier. Bells Hess held that, constitutionally, the basis for the requisite nexus was not to be found solely in Bellas Hess' mail-order activities in the State. The Court's opinion carefully underscored, however, the 'sharp distinction . . . between mail order sellers with retail outlets, solicitors, or property within (the taxing) State, and those (like Bellas Hess) who do no more than communicate with customers in the State by mail or common carrier as part of a general interstate business.' Id., at 758, 87 S.Ct., at 1392. Appellant Society clearly falls into the former category.
II
13
The Society argues, however, that its contacts with customers in California were related solely to its mail-order sales by means of common carrier or the mail, that the two offices played no part in that activity, and that therefore this case is controlled by Bellas Hess.6 The Society argues in other words that there must exist a nexus or relationship not only between the seller and the taxing State, but also between the activity of the seller sought to be taxed and the seller's activity within the State. We disagree. However fatal to a direct tax a 'showing that particular transactions re dissociated from the local business . . .,' Norton Co. v. Illinois Rev. Dept., supra, at 537, 71 S.Ct. at 380; American Oil Co. v. Neill, supra; Connecticut Gen. Life Ins. Co. v. Johnson, 303 U.S. 77, 58 S.Ct. 436, 82 L.Ed. 673 (1938), such dissociation does not bar the imposition of the use-tax-collection duty.7 It is true that Sears, Roebuck and Montgomery Ward, relied on by appellant, involved fact patterns that included proof of assistance by local operations of the mail-order business. Sears maintained 12 retail stores in the taxing State and was qualified to do business there. Sears' agents in the States, although not directly involved in the solicitation of the mail-order sales, at times assisted in processing such orders. The holding that Sears could not avoid use-tax liability did not, however, turn on that fact. The holding, rather, was that the fact Sears' business was departmentalized the mail-order and retail stores operations were separately administered did not preclude the finding of sufficient nexus. Montgomery Ward, a companion case to Sears, Roebuck, presented a somewhat similar fact pattern. There the local retail stores engaged in local advertising of the mail-order merchandise. But here again we disagree that this fact was crucial to the Court's decision. Even if, as the Society argues, the fact patterns of Sears and Montgomery Ward may be regarded as the equivalent of the in-state solicitation by local agents found sufficient to supply the nexus for imposition of the use-tax-collection duty in Felt vp Tarrant Co. v. Gallagher, 306 U.S. 62, 59 S.Ct. 376, 83 L.Ed. 488 (1939), see also Scripto, Inc. v. Carson, 362 U.S. 207, 80 S.Ct. 619, 4 L.Ed.2d 660 (1960) (local solicitation by commission 'salesmen'); General Trading Co. v. Tax Comm'n, 322 U.S. 335, 64 S.Ct. 1028, 88 L.Ed. 1309 (1944) (traveling salesmen sent into taxing State); Bowman v. Continental Oil Co., 256 U.S. 642, 41 S.Ct. 606, 65 L.Ed. 1139 (1921) (local distributor and dealer); and Monamotor Oil Co. v. Johnson, 292 U.S. 86, 54 S.Ct. 575, 78 L.Ed. 1141 (1934) (local refining, storage, and distributing facilities), the relevant constitutional test to establish the requisite nexus for requiring an out-of-state seller to collect and pay the use tax is not whether the duty to collect the use tax relates to the seller's activities carried on within the State, but simply whether the facts demonstrate 'some definite link, some minimum connection, between $'the State and) the person . . . it seeks to tax.' Miller Bros. v. Maryland,, 347 U.S., at 344-345, 74 S.Ct., at 539. (Emphasis added.) Here the Society's two offices, without regard to the nature of their activites, had the advantage of the same municipal services fire and police protection, and the like as they would have had if their activities, as in Sears and $Montgomery Ward, included assistance to the mail-order perations that generated the use taxes.
14
The Society's reliance on Miller Bros. Co. v. Maryland, supra, is also misplaced. The sales with respect to which Maryland sought to impose upon Miller theduty to collect its taxwereof goodssoldtoresidents of Marylandat Miller'sDelaware store, although Millermadeoccasionaldeliveries in Maryland. Moreover, thelackof certainty that themerchandisesoldover thecounter to Maryland customers in Delaware was transported to Maryland prior to its use militated against a finding of adequate nexus with respect to those purchases. Scripto, Inc. v. Carson, supra, at 212-213, 80 S.Ct., at 622. The relational defect between the taxing State and the person or property sought to be taxed therefore obviated any relevance of a relationship between the State and the out-of-state retailer.
15
We conclude that the Society's continuous presence in California in offices that solicit advertising for its magazine provides a sufficient nexus to justify that State's imposition upon the Society of the duty to act as collector of the use tax.
16
Affirmed.
17
THE CHIEF JUSTICE and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
18
Mr. Justice BLACKMUN, concurring in the result.
19
I am not at all convinced that the Court's facile distinction of Miller Bros. Co. v. Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744 (1954), on the ground that in that case 'the seller obviously could not know whether the goods sold over the counter in Delaware were transported to Maryland prior to their use', ante, at 559, and that there was a 'lack of certainty that the merchandise sold over the counter to Maryland customers in Delaware was transported to Maryland prior to its use', ante, this page, is a proper and acceptable distinction. I thought that one of the factual difficulties of Miller, in the focus of the present case, was the Delaware seller's own delivery of goods to Maryland, some by common carrier and some by the seller's own truck. 347 U.S., at 341-342, 74 S.Ct., at 537. Indeed, Miller Bros. stipulated that during the taxable period, t delivered or paid a common carrier to deliver $9,500 worth of merchandise to customers in Maryland ($8,000) through use of its truck, $1,500 by common 542 n. 5. Miller Bros. exhibited no uncertainty as to the destination of those goods.
20
The Court appears to find an additional distinction in the fact that the goods in Miller Bros. were 'sold to residents of Maryland at Miller's Delaware store,' ante, at 561. If the Court intends thereby to rest a distinction on the fact that the sales were made out of State, I am at a loss to follow its reasoning. By definition, a use tax is imposed only on sales made out of State. In short, Miller Bros. is not so easily explained away.
21
Thus, it seems to me, we have another instance where this Court's past decisions in the tax area are not fully consistent. See Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326, and its development from its immediate predecessor, Colonial Pipeline Co. v. Traigle, 421 U.S. 100, 101, 95 S.Ct. 1538, 1539, 44 L.Ed.2d 1 (1975).
22
In any event, I find myself in accord with the Court's result in the present case. If, as I suspect the result today is not fully consistent to let Miller go.
1
The relevant sections of the Cal.Rev. & Tax.Code provide:
§ 6203 (West Supp.1976).
'Except as provided by Sections 6292 and 6293 every retailer engaged in business in this state and making sales of tangible personal property for storage, use, or other consumption in this state, not exempted under Chapters 3.5 or 4 of this part, shall, at the time of making the sales or, if the storage, use, or other consumption of the tangible personal property is not then taxable hereunder, at the time the storage, use, or other consumption becomes taxable, collect the tax from the purchaser and give to the purchaser a receipt therefor in the manner and form prescribed by the board.
"Retailer engaged in business in this state' as used in this and the preceding section means and includes any of the following:
'(a) Any retailer maintaing, occupying, or using, permanently or temporarily, directly or indirectly, or through a subsidiary, or agent, by whatever name called, an office, place of distribution, sales or sample room or place, warehouse or storage place or other place of business.'
§ 6204 (West 1970).
'The tax required to be collected by the retailer and any amount unreturned to the customer which is not tax but was collected from the customer under the representation by the retailer that it was tax constitutes debts owed by the retailer to this state.'
The magazine is exempted from sales and use taxes as a 'periodical.' § 6362.
2
The offices are in San Francisco and Los Angeles and have been maintained since 1956. Each office was originally staffed with one salesman and one secretary, but each office has since increased its personnel to four. The basic function of the offices is to solicit advertising for the magazine, 16 Cal.3d, at 640, 128 Cal.Rptr., at 683-684, 547 P.2d, at 459-460. Sales of advertising copy by the two offices aggregate about $1 million annually. Tr. of Oral Arg. 6. During a nine-month period from August 1, 1963, to May 6, 1964, appellant Society also used these offices to make over-the-counter sales, upon which sales taxes were paid, of maps, atlases, globes, and books totaling $679.20 for the San Francisco office and $2,161.85 for the Los Angeles office. The California Supreme Court found it unnecessary to consider these sales in determining whether sufficient nexus was shown since the Society's office activities sufficed in its view adequately to prove sufficient nexus. 16 Cal.3d, at 641 n. 6, 128 Cal.Rptr., at 684 n. 6, 547 P.2d, at 460 n. 6. We are of the same view.
3
Although appellant's potential liability exceeds $180,000 and covers a nine-year period, ibid., the assessment by the California Board of Equalization for the years involved in this case is $3,838.76, including interest and penalties. Appellant paid the assessment under protest and sued for its refund in State Superior Court and recovered a judgment. The California Court of Appeal, First Appellate District, affirmed. 46 Cal.App.3d 470, 121 Cal.Rptr. 77 (1975). The California Supreme Court reversed and sustained the assessment. 16 Cal.3d 637, 128 Cal.Rptr. 682, 547 P.2d 458 (1976).
4
Henneford obviated the necessity for legislation sought by the National Association of State Tax Administrators in the 73d through 76th Congresses to permit States to extend their sales taxes to certain interstate transactions. See H.R.Rep.No.565, 89th Cong., 1st Sess., 613-615 (1965). Some 45 States and the District of Columbia require out-of-state sellers to collect use taxes on sales made to state residents. Brief for Direct Mail/Marketing Assn. as Amicus Curiae 4.
5
Appellant society argues that under the California Supreme Court's 'slightest presence' test §§ 6203 and 6204 could be applied even if the Society maintained no offices in the State but merely owned a parking lot. But the sections were applied to appellant only because it maintained the offices. Appellant was therefore only subject to the law because it fell within 'retailer engaged in business in this state' as defined in § 6203(a).
6
Appellant conceded at oral argument that Bellas Hess would have required reversal in the absence of the proof of maintenance of the two offices. Tr. of Oral Arg. 29, 34-35.
7
Contrary to appellant's argument, Brief for Appellant 6, the fact that it has not registered to do business in California is not determinative against the validity of the application of §§ 6203 and 6204. See General Trading Co. v. Tax Comm'n, 322 U.S. 335, 64 S.Ct. 1028, 88 L.Ed. 1309 (1944); Felt & Tarrant Co. v. Gallagher, 306 U.S. 628 59 S.Ct. 376, 83 L.Ed. 488 (1939).
| 78
|
430 U.S. 564
97 S.Ct. 1349
51 L.Ed.2d 642
UNITED STATES, Petitioner,v.MARTIN LINEN SUPPLY COMPANY et al.
No. 76-120.
Argued Feb. 23, 1977.
Decided April 4, 1977.
Syllabus
After a deadlocked jury was discharged when unable to agree upon a verdict at the criminal contempt trial of respondent corporations, the District Judge granted respondents' timely motions for judgments of acquittal under Fed.Rule Crim.Proc. 29(c), which provides that 'a motion for judgment of acquittal may be made . . . within 7 days after the jury is discharged (and) the court may enter judgment of acquittal. . . .' The Government appealed pursuant to 18 U.S.C. § 3731, which allows an appeal by the United States in a criminal case 'to a court of appeals from a . . . judgment . . . of a district court dismissing an indictment . . ., except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.' The Court of Appeals dismissed the appeal. Hel: The Double Jeopardy Clause bars appellate review and retrial following a judgment of acquittal entered under Rule 29(c). Pp. 568-576.
(a) The 'controlling constitutional principle' of the Double Jeopardy Clause focuses on prohibitions against multiple trials, United States v. Wilson, 420 U.S. 332, 346, 95 S.Ct. 1013, 1023, 43 L.Ed.2d 232, and where an appeal by the Government presents no threat of successive prosecutions, the Clause is not offended. Pp. 568-570.
(b) The normal policy granting the Government the right to retry a defendant after a mistrial that does not determine the outcome of a trial does not apply here since valid judgments of acquittal were entered on the express authority of and in strict compliance with Rule 29(c), and a successful governmental appeal reversing the judgments of acquittal would necessitate another trial or further proceedings to resolve factual issues going to the elements of the offense charged. Pp. 570-571.
(c) The judgments of acquittal here were 'acquittals' in substance as well as form, since the District Court plainly granted the Rule 29(c) motion on the express view that the Government had not proved facts constituting criminal contempt. Pp. 571-572.
(d) Rule 29 recognizes no legal distinction between judge and jury with respect to the invocation of the protections of the Double Jeopardy Clause. P. 573.
(e) Rule 29 contemplated no artificial distinctions between situations where the judge enters a judgment of acquittal prior to submission of the case to the jury under Rule 29(a), or after submission but prior to the jury's return of a verdict under Rule 29(b), and the jury is thereafter discharged, and the situation involved here, where the judge chose to await the outcome of the jury's deliberations and, upon its failure to reach a verdict, acted on a timely motion for acquittal after the jury's discharge. United States v. Sanford, 429 U.S. 14, 97 S.Ct. 20, 50 L.Ed.2d 17, distinguished. Pp. 573-572.
534 F.2d 585, affirmed.
Frank H. Easterbrook, Washington, D. C., for petitioner, pro hac vice, by special leave of Court.
J. Burleson Smith, San Antonio, Tex., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
A 'hopelessly deadlocked' jury was discharged when unable to agree upon a verdict at the criminal contempt trial of respondent corporations in the District Court for the Western District of Texas.1 Federal Rule Crim.Proc. 29(c) provides that in such case 'a motion for judgment of acquittal may be made . . . within 7 days after the jury is discharged (and) the court may enter judgment of acquittal. . . .'2 Timely motions for judgments of acquittal under the Rule made by respondents six days after the discharge of the jury resulted two months later in the entry by the District Court of judgments of acquittal.3 The sole question presented for our decision is whether these judgments of acquittal under Rule 29(c) are appealable by the United States pursuant to 18 U.S.C. § 3731. Section 3731 provides that an appeal by the United States in a criminal case 'shall lie to a court of appeals from a . . . judgment . . . of a district court dismissing an indictment . . ., except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.'4 The Court of Appeals for the Fifth Circuit held that no appeal lay under § 3731 from the judgments of acquittal entered by the District Court under Rule 29(c). 534 F.2d 585 (1976). The Court of Appeals reasoned that, since reversal of the acquittals would enable the United States to try respondents a second time, the bar of the Double Jeopardy Clause 'leads inescapably to the conclusion that no appeal lies from the directed verdict ordered by the court below.' Id., at 589.5 We granted certiorari. 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282 (1976). We affirm.
2
* It has long been established that the United States cannot appeal in a criminal case without express congressional authorization. United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975); United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892). Only two Terms ago Wilson traced the uneven course of such statutory, authority until 1970 when Congress amended the Criminal Appeals Act, 420 U.S., at 336-339, 95 S.Ct. 1018-1019, and that history need not be repeated here. See also United States v. Sisson, 399 U.S. 267, 307-308, 90 S.Ct. 2117, 2138-2139, 26 L.Ed.2d 608 (1970). It suffices for present purposes that this Court in Wilson found that in enacting § 3731 as Title III of the Omnibus Crime Control Act of 1970, 84 Stat. 1890, 'Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit.' 420 U.S. at 337, 90 S.Ct. at 1019. Therefore, unless barred by the Double Jeopardy Clause of the Constitution, appeals by the Government from the judgments of acquittal entered by the District Court under Rule 29(c) are authorized by § 3731.
3
Consideration of the reach of the constitutional limitations inhibiting governmental appeals was largely unnecessary during the prior regime of statutory restrictions. But see Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904). However, now that Congress has removed the statutory limitations to appeal and the relevant inquiry turns on the reach of the Double Jeopardy Clause itself, it has become 'necessary to take a closer look at the policies underlying the Clause in order to determine more precisely the boundaries of the Government's appeal rights in criminal cases.' United States v. Wilson, supra, at 339, 95 S.Ct. at 1020. In the few cases decided since 1970 that have taken this 'closer look,' many of the policies shaping restrictions on governmental appeal rights have been brought into sharper focus.
4
'The development of the Double Jeopardy Clause from its common-law origins . . . suggests that it was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals would not require a new trial.' Id., at 342, 95 S.Ct. at 1021. Thus Wilson held that the 'controlling constitutional principle' focuses on prohibitions against multiple trials. Id., at 346, 95 S.Ct. at 1023. At the heart of this policy is the concern that permitting the sovereign freely to subject the citizen to a second trial for the same offense would arm Government with a potent instrument of oppression. The Clause, therefore, guarantees that the State shall not be permitted to make repeated attempts to convict the accused, 'thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty.' Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); see also Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963). '(S) ociety's awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws.' United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (Harlan, J.).6
5
In animating this prohibition against multiple prosecutions, the Double Jeopardy Clause rests upon two threshold conditions. The protections afforded by the Clause are implicated only when the accused has actually been placed in jeopardy. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). This state of jeopardy attaches when a jury is empaneled and sworn, or, in a bench trial, when the judge begins to receive evidence. Illinois v. Somerville, 410 U.S. 458, 471, 93 S.Ct. 1066, 1073, 35 L.Ed.2d 425 (1973) (White, J., dissenting); Downum v. United States, supra. Further, where a government appeal presents no thReat of successive prosecutions, the Double Jeopardy Clause is not offended. Thus a postverdict dismissal of an indictment after a jury rendered a guilty verdict has been held to be appealable by the United States because restoration of the guilty verdict, and not a new trial, would necessarily result if the Government prevailed. United States v. Wilson, supra.7
II
6
None of the considerations favoring appealability is present in the case of a Government appeal from the District Court's judgments of acquittal under Rule 29(c) where the jury failed to agree on a verdict. The normal policy granting the Government the right to retry a defendant after a mistrial that does not determine the outcome of a trial, United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824), is not applicable since valid judgments of acquittal were entered on the express authority of, and strictly in compliance with, Rule 29(c). Those judgments, according to the very wording of the Rule, act to terminate a trial in which jeopardy has long since attached.8 And a successful governmental appeal reversing the judgments of acquittal would necessitate another trial, or, at least, 'further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged . . .' United States v. Jenkins, 420 U.S. 358, 370, 95 S.Ct. 1006, 1013, 43 L.Ed.2d 250 (1975). Therefore, the present case is not one where the double jeopardy bar to appealability is automatically averted. Rather, we must inquire further into the constitutional significance of a Rule 29(c) acquittal.
7
Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that '(a) verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting (a defendant) twice in jeopardy, and thereby violating the Constitution.' United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). In Fong Foo v. United States, supra, for example, a District Court directed jury verdicts of acquittal and subsequently entered formal judgments of acquittal. The Court of Appeals entertained the appeal of the United States and reversed the District Court's ruling on the ground that the trial judge was without power to direct acquittals under the circumstances disclosed by the record. We reversed, holding that, although the Court of Appeals may correctly have believed 'that the acquittal was based upon an egregiously erroneous foundation, . . . (n) evertheless, '(t)he verdict of acquittal was final, and could not be reviewed . . . without putting (the defendants) twice in jeopardy, and thereby violating the constitution." 369 U.S., at 143, 82 S.Ct. at 672. See also Kepner v. United States, supra; United States v. Sisson, 399 U.S., at 289-290, 90 S.Ct., at 2129; Serfass v. United States, supra, at 392, 95 S.Ct., at 1064. In applying this teaching of Ball, Fong Foo, and like cases, we have emphasized that what constitutes an 'acquittal' is not to be controlled by the form of the judge's action. United States v. Sisson, supra, at 270, 90 S.Ct., at 2119; cf. United States v. Wilson, 420 U.S., at 336, 95 S.Ct., at 1018.9 Rather, we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.
8
There can be no question that the judgments of acquittal entered here by the District Court were 'acquittals' in substance as well as form. The District Court plainly granted the Rule 29(c) motion on the view that the Government had not proved facts constituting criminal contempt.10 The court made only too clear its belief that the prosecution was "the weakest (contempt case that) I've ever seen." 534 F.2d, at 587. In entering the judgments of acquittal, the court also recorded its view that "the Government has failed to prove the material allegations beyond a reasonable doubt" and that "defendant should be found 'not guilty.'"
9
Thus, it is plain that the District Court in this case evaluated the Government's evidence and determined that it was legally insufficient to sustain a conviction. The Court of Appeals concluded that this determination of insufficiency of the evidence triggered double jeopardy protection.11 The Government, however, disputes the constitutional significance of the District Court's action. It submits that only a verdict of acquittal formally returned by the jury should absolutely bar further proceedings and that '(o)nce the district court declared a mistrial and dismissed the jury, any double jeopardy bar to a second trial dissolved.' Brief for United States 21. We cannot agree.
10
Of course, as the Government argues, in a jury trial the primary finders of fact are the jurors. Their overriding responsibility is to stand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction. For this reason, a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict, see Sparf & Hansen v. United States, 156 U.S. 51, 105, 15 S.Ct. 273, 294, 39 L.Ed. 343 (1895); Carpenters v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 782, 91 L.Ed. 973 (1947), regardless of how overwhelmingly the evidence may point in that direction. The trial judge is thereby barred from attempting to override or interfere with the jurors' independent judgment in a manner contrary to the interests of the accused.
11
Such a limitation on the role of a trial judge, however, has never inhibited his ruling in favor of a criminal defendant. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), establishing the binding nature of a directed verdict, is dispositive on that point. Since Rule 29 merely replaces the directed-verdict mechanism employed in Fong Foo, and accords the federal trial judge greater flexibility in timing his judgment of acquittal, no persuasive basis exists for construing the Rule as weakening the trial court's binding authority for purposes of double jeopardy.12 Rather, the Notes of the Advisory Committee have confirmed that Rule 29 intends no substantive alteration in the role of judge or jury, but creates a purely formal modification of the directed-verdict device in order 'to make the nomenclature accord with the realities.' 18 U.S.C.App., p. 4504. Accordingly, United States v. Sisson, supra, at 290, 90 S.Ct. at 2129, held that Rule 29 recognizes no 'legal distinction' between judge and jury with respect to the invocation of the protections of the Double Jeopardy Clause.
12
The Government, however, would read Fong Foo and, by implication, Rule 29 differently. It argues that the judge's directed verdict in Fong Foo was binding for double jeopardy purposes because the formal verdict of acquittal, though on direction, was rendered not by the judge, but by the jury, which then was discharged. This in effect turns the constitutional significance of a Rule 29 judgment of acquittal on a matter of timing. Thus, if the judge orders entry of judgment of acquittal on his own or on defendant's motion prior to submission of the case to the jury, as he may under Rule 29(a), or after submission but prior to the jury's return of a verdict, as authorized by Rule 29(b) and the jury thereafter is discharged the Government's argument necessarily concedes that the Double Jeopardy Clause would preclude both appeal and retrial. If, however, the judge chooses to await the outcome of the jury's deliberations and, upon its failure to reach a verdict, acts on a timely motion for acquittal filed under Rule 29(c) within seven days of its discharge, the Government submits that the Double Jeopardy Clause should not bar an appeal.
13
We are not persuaded. Rule 29 contemplated no such artificial distinctions. Rather the differentiations in timing were intentionally incorporated into the Rule to afford a trial judge the maximum opportunity to consider with care a pending acquittal motion. Insofar as the Government desires an appeal to correct error, irrational behavior, or prejudice on the part of the trial judge, its interest is not dependent on the point of trial when the judge enters his Rule 29 judgment, and suffers no special prejudice by a judge's acquittal after the jury disagrees and is discharged.13 And to the extent that the judge's authority under Rule 29 is designed to provide additional protection to a defendant by filtering out deficient prosecutions, the defendant's interest in such protection is essentially identical both before the jury is allowed to come to a verdict and after the jury is unable to reach a verdict: In either case, the defendant has neither been condemned nor exculpated by a panel of his peers and, in the absence of intervention by the trial judge, his vindication must await further action by a jury.
14
We thus conclude that judgments under Rule 29 are to be treated uniformly and, accordingly, the Double Jeopardy Clause bars appeal from an acquittal entered under Rule 29(c) after a jury mistrial no less than under Rule 29(a) or (b). United States v. Sanford, 429 U.S. 14, 97 S.Ct. 20, 50 L.Ed.2d 17 (1976), does not dictate a contrary result. In Sanford, a jury trial ended in the declaration of a mistrial. A judgment of acquittal was never entered. Some four months later, with the second trial well into the preparatory stage, the trial court dismissed the prosecution's indictment. Because the dismissal 'occurred several months after the first trial had ended in a mistrial but before the retrial of respondents had begun,' id., at 16, 97 S.Ct., at 21, the Court characterized the judge's dismissal as 'a pretrial order,' ibid., and concluded that its appealability was governed by Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). The Court's linking of Sanford with Serfass highlights the distinctiveness of an acquittal under Rule 29(c). In Serfass the Court carefully distinguished between appeal of a pretrial order and appeal of "a legal determination on the basis of facts adduced at the trial relating to the general issue of the case." 420 U.S., at 393, 95 S.Ct. at 1065, quoting United States v. Sisson, 399 U.S., at 290 n. 19, 90 S.Ct., at 2130. A Rule 29 acquittal, however, falls squarely within the latter category: By the very language of the Rule, such a judgment of acquittal plainly concludes a pending prosecution in which jeopardy has attached, following the introduction at trial of evidence on the general issue. In that circumstance we hold that 'although retrial is sometimes permissible after a mistrial is declared but no verdict or judgment has been entered, the verdict of acquittal foreclosed retrial and thus barred appellate review.' United States v. Wilson, 420 U.S., at 348, 95 S.Ct., at 1024.
15
Affirmed.
16
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
17
Mr. Justice STEVENS, concurring in the judgment.
18
There is no statutory authority for a Government appeal from a judgment of acquittal in a criminal case. The plain language of 18 U.S.C. § 3731, together with its unambiguous legislative history, makes it perfectly clear that Congress did not authorize and did not intend to authorize appeals from acquittals.1
19
Prior to its most recent amendment in 1970, the Criminal Appeals Act had been a source of great confusion, 'a most unruly child that has not improved with age,' United States v. Sisson, 399 U.S. 267, 307, 90 S.Ct. 2117, 2139, 26 L.Ed.2d 608. The Act had been construed to incorporate obscure distinctions between various types of dismissals, some of which were appealable directly to this Court, some to the court of appeals, and some that could not be appealed to either court.2 However, the one thing that had always been clear was that 'no appeal (could) be taken by the Government from an acquittal no matter how erroneous the legal theory underlying the decision,' id., at 299, 90 S.Ct., at 2134.
20
The 1970 amendment changed the law by eliminating all distinctions between different kinds of dismissals, but neither the present statute nor any of its predecessors has even authorized an appeal from an acquittal. The statute, in relevant part, now reads:
21
'In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.' 18 U.S.C. § 3731 (emphasis added).
22
There is nothing in this statutory language to suggest that a judgment of acquittal, as opposed to a dismissal, is appealable.
23
The legislative history demonstrates that Congress intended to eliminate nonconstitutional barriers to appeals from dismissals, but did not intend to allow appeals from acquittals. As this Court has recognized, the Senate Report is the key to the legislative history.3 The Report opens by describing the purpose of the bill as being 'to resolve serious problems which frequently have arisen with respect to the right of the United States to appeal rulings which terminate prosecutions other than by judgments of acquittal . . ..' S.Rep.No. 91-1296, p. 2 (1970) (emphasis added). Apart from the problem of direct Supreme Court review, the Report states that the 'major problem that has arisen under the present statute concerns the total lack of appealability of certain kinds of dismissals and suppressions.' Id., at 4 (emphasis added). The Report then discusses at length the then-existing limitations on appeals from dismissals.4 The Committee believed that the Constitution allowed the Government to appeal any dismissal, id., at 7-12, and stated that the bill was 'intended to be liberally construed so as to effectuate its purpose of permitting the Government to appeal from dismissals of criminal prosecutions by district courts in all cases where the Constitution permits . . ..' Id., at 18 (emphasis added). On the other hand, the Committee believed that the Constitution barred any appeal from an acquittal or from a dismissal amounting to an acquittal; '(a) true acquittal is based upon the insufficiency of the evidence to prove an element of the offense.' Id., at 11.
24
The same understanding was demonstrated by the bill's sponsor when he presented the Senate Report on the floor. He summarized the bill as providing that 'the Government has the right to appeal any ruling by a district court in a criminal case which dismisses a prosecution in favor of a defendant except where the ruling is an acquittal'; he also presented a letter from the Solicitor General explaining that the bill would allow 'an appeal from any dismissal except one amounting to a 'judgment of acquittal,' i. e., a factual judgment that the defendant is not guilty of the crime charged and is thereby entitled to protection against double jeopardy.' 116 Cong.Rec. 35659 (1970) (remarks of Sen. Hruska).
25
As the Court explained in Wilson, the Conference Committee made a minor change in the wording of the bill. See Wilson, 420 U.S., at 338, 95 S.Ct. at 1019. That change narrowed the bill in two respects. The Senate bill had allowed appeals from dismissals and also from any order 'terminating a prosecution in favor of a defendant,' and had expressly barred appeals from a judgment of acquittal.5 In short, as the Conference Committee stated, the Senate bill authorized an appeal from 'any decision or order terminating a prosecution except an acquittal,' H.R.Conf.Rep.No.91-1768, p. 21 (1970), U.S.Code Cong. & Admin.News, 1970, p. 5848. The Conference Committee's change narrowed the bill by deleting the reference to orders 'terminating a prosecution in favor of a defendant,' leaving only dismissals appealable. (This deletion rendered superfluous the exception for acquittals, which was also deleted.) The Committee's change also narrowed the bill by barring any appeal, even from a dismissal, when further prosecution would violate double jeopardy.
26
An attempt to authorize the Government to appeal from acquittals would have represented a radical change in the law. The sponsor of the bill apparently did not understand the legislation to have such far-reaching effects; he described it as 'noncontroversial legislation which would do away with unnecessary and perplexing jurisdictional problems in appeals by the Government in criminal cases . . ..' 116 Cong.Rec. 35659 (1970) (remarks of Sen. Hruska). Similarly, the Conference Report describes the Senate bill as merely eliminating '(t) echnical distinctions . . . on appeals by the United States,' H.R.Conf.Rep.No.91-1768, supra, at 21, U.S.Code Cong. & Admin.News 1970, p. 5848.6
27
Interpreting legislative history is sometimes a perplexing and uncertain task. In this instance, however, the legislative history is absolutely clear: Congress was interested solely in expanding the Government's right to appeal from the dismissal of an indictment; it had no desire to allow appeals from acquittals and believed such appeals would be unconstitutional.
28
Since I am satisfied that Congress has not authorized the Government to appeal from a judgment of acquittal, the only question presented is whether such a judgment was entered in this case. The answer to that question, as the Court demonstrates, is perfectly clear. By virtue of Fed.Rule Crim.Proc. 29(c), the mistrial did not terminate the judge's power to make a decision on the merits. His ruling, in substance as well as form, was therefore an acquittal.7
29
For this reason, I concur in the Court's judgment.
30
Mr. Chief Justice BURGER, dissenting.
31
The order of acquittal in favor of respondents was entered by the District Judge after a mistrial had been declared due to a jury deadlock. Once the jury was dismissed, respondents ceased to be in jeopardy in that proceeding; they could no longer be convicted except after undergoing a new trial. For a century and a half it has been accepted that a defendant may properly be reprosecuted after the declaration of such a mistrial, United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824). Therefore the District Judge's ruling here was made 'prior to a trial that the Government had a right to prosecute and that the defendant was required to defend.' United States v. Sanford, 429 U.S. 14, 16, 97 S.Ct. 20, 22, 50 L.Ed.2d 17 (1976).1
32
The present case cannot be distinguished from Sanford in constitutionally material respects. It is true that the District Judge here phrased his order as an acquittal rather than as a dismissal, and that the order was entered pursuant to a timely Rule 29(c) motion. However, such mechanical niceties are not dispositive of whether retrial would expose defendants to double jeopardy; our Fifth Amendment inquiry should focus on the substance rather than the form of the proceedings below. In ruling on a motion for acquittal the District Judge must pass on the sufficiency, not on the weight, of the Government's case, United States v. Isaacs, 516 F.2d 409, 410 (CA5), cert. denied, 423 U.S. 936, 96 S.Ct. 295, 46 L.Ed.2d 269 (1975); United States v. Wooten, 503 F.2d 65, 66 (CA4 1974). '(T)he applicable standard is whether (the District Judge as a trier of fact) could, not whether he would, find the accused guilty on the Government's evidence.' United States v. Consolidated Laundries Corp., 291 F.2d 563, 574 (CA2 1961) (emphasis in original).
33
The District Judge's ruling is this plainly one of law, not of fact; it could only exonerate, not convict, the defendant. No legitimate interest of the defendant requires that this ruling be insulated from appellate review. On the other hand, barring the appeal jeopardizes the Government's substantial interest in presenting a legally sufficient case to the jury. The Court's holding today is thus wholly inconsistent with the intent of Rule 29(c) as described by the drafters in the Advisory Committee Notes. In explaining the 1966 amendments to the Rule, the Notes expressly state: 'No legitimate interest of the government is intended to be prejudiced by permitting the court to direct an acquittal on a post-verdict motion.' 18 U.S.C.App., p. 4505. Surely the well recognized right to reprosecute is such a 'legitimate interest of the government,' and should remain unaffected by the District Judge's order of acquittal.
34
Nor will the interest of clarity and consistency in the administration of the criminal justice system be served by today's holding. By hinging the outcome of this case on the timing of the post-trial motion and the label on the order, the Court is elevating form over substance and undermining the theoretical framework established by the Wilson-Jenkins-Serfass trilogy2 of two Terms ago and the Sanford and United States v. Morrison, 429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1 (1976), decisions earlier this Term. All litigants in our criminal courts Government and defendants alike are harmed by the uncertainty thus created. For these reasons, I cannot join the Court's holding and I respectfully dissent.
1
The criminal contempt proceeding was filed in 1971 and charged respondents, two commonly owned linen supply companies, and their president, William B. Troy, with violation of a consent decree entered in 1969 as the final judgment in an antitrust suit. The petitions were originally dismissed by the District Court but the dismissal was reversed by the Court of Appeals, 485 F.2d 1143 (5 Cir. 1973). The Government filed a supplemental criminal contempt petition on which trial was had in February 1975. On February 21, 1975, the jury was discharged after returning the not-guilty verdict as to Troy and announcing that it was 'hopelessly deadlocked' as to respondent corporations. Six days later, on February 27, 1975, respondents filed their motions for judgments of acquittal under Rule 29(c). On April 24, 1975, the District Court granted the motions and entered judgments of acquittal.
2
Rule 29 provides:
'Motion for Judgment of Acquittal
'(a) Motion before Submission to Jury. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right.
'(b) Reservation of Decision on Motion. If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.
'(c) Motion after Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.'
3
After dismissal of the jury, the District Judge advised counsel for all parties that he would be inclined 'to enter a judgment of acquittal as to (respondents) if an appropriate motion was made.' App. 31. He said that he had 'almost instructed a verdict for all Defendants' because the Government's case 'is without a doubt the weakest (contempt case that) I've ever seen.' Id., at 30.
4
In pertinent part, § 3731 provides:
§ 3731. Appeal by United States
'In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.'
Although this provision authorizes appeal from a district court 'dismiss(al)' rather than 'acquittal,' it is now established that the form of the ruling is not dispositive of appealability in a statutory sense, see infra, at 568.
5
In characterrizing the trial court's action as a 'directed verdict,' the Court of Appeals erred in terminology, for Rule 29(a) expressly substitutes 'judgment of acquittal' for 'directed verdict.' As shall be seen, however, see infra, at 573, the purely formal nature of the change in federal criminal procedure marked by Rule 29 speaks strongly in favor of treating Rule 29 judgments of acquittal the same as their predecessor directed verdicts for purposes of invoking double jeopardy. See Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962).
6
The Double Jeopardy Clause also accords nonappealable finality to a verdict of guilty entered by judge or jury, disabling the Government from seeking to punish a defendant more than once for the same offense. See Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874).
7
The absence of a threatened second trial mitigates the possibility of governmental jury shopping and substantially reduces the expense and anxiety to be borne by the defendant. In addition, the Government's interest in preserving a conviction fairly attained obviously is far greater than its interest in investing additional time and resources in reprosecuting a defendant following a jury's failure to reach a verdict and a trial court's judgment of acquittal.
8
A motion under Rule 29 for a judgment of acquittal can be entertained, at the earliest, 'after the evidence on either side is closed . . ..' This stage of the trial obviously arises well after jeopardy has attached.
9
The Court must inquire whether 'the ruling in (defendant's) favor was actually an 'acquittal' even though the District Court characterized it otherwise.' United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975).
10
Rule 29(a) in terms authorizes a judgment of acquittal 'if the evidence is insufficient to sustain a conviction of such offense or offenses.'
11
The only other Court of Appeals specifically to address this issue reached the same conclusion. United States v. Suarez, 505 F.2d 166 (CA2 1974) (per curiam).
12
In the situation where a criminal prosecution is tried to a judge alone, there is no question that the Double Jeopardy Clause accords his determination in favor of a defendant full constitutional effect. See United States v. Jenkins, 420 U.S. 358, 365-367, 95 S.Ct. 1006, 1010-1011, 43 L.Ed.2d 250 (1975). Even though, as proposed here by the Government with respect to a Rule 29 judgment of acquittal, it can be argued that the prosecution has a legitimate interest in correcting the possibility of error by a judge sitting without a jury, the Court in Jenkins refused to accept theories of double jeopardy that would permit reconsideration of a trial judge's ruling discharging a criminal defendant.
13
The Advisory Committee that framed Rule 29 explicitly noted that subdivision (c), permitting the entry of a judgment of acquittal after the jury's discharge, works no undue prejudice on the Government because the prosecution has no constitutionally sanctioned interest in receiving a verdict from the jury: 'The constitutional requirement of a jury trial in criminal cases is primarily a right accorded to the defendant.' 18 U.S.C.App., p. 4505. Cf. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). Any Government right to demand a jury verdict is limited to that afforded by Fed.Rule Crim.Proc. 23(a) (jury trial waivable with the consent of the Government) and, of course, can be qualified by authority granted the trial under Rule 29.
1
The contrary dictum in United States v. Wilson, 420 U.S. 332, 336-339, 95 S.Ct. 1013, 1018-1019, 43 L.Ed.2d 232; United States v. Jenkins, 420 U.S. 358, 363-364, 95 S.Ct. 1006, 1010, 43 L.Ed.2d 250; Serfass v. United States, 420 U.S. 377, 383-387, 95 S.Ct. 1055, 1060-1061, 43 L.Ed.2d 265, is not controlling for these reasons: First, the statutory issue was not in dispute in any of those cases. Two of the defendants expressly conceded the applicability of the statute in their cases, Brief for Respondent in United States v. Wilson, O.T.1974, No. 73-1395, p. 2; Brief for Respondent in United States v. Jenkins, O.T.1974, No. 73-1513, p. 10. The third defendant simply failed to address the statutory issue, see Brief for Petitioner in Serfass v. United States, O.T.1974, No. 73-1424, probably because his case involved a pretrial dismissal of the indictment. Hence, the Court was unaided by an adversary presentation of the issue. Moreover, re-examination of the language used in the decisions would not undermine their holdings. The two cases in which the Court upheld the Government appeal clearly did not involve acquittals on the merits. (Serfass was a pretrial dismissal; Wilson was a dismissal on speedy trial grounds.) The third case, Jenkins, arguably involved an acquittal, but the Court held on constitutional grounds that the appeal was barred.
Second, as I indicate in the text, infra, at 581, it is perfectly clear that the dictum is incorrect. In view of our special responsibility for supervising the proper functioning of the federal criminal justice system, we should not hesitate to correct a plain mistake involving a technical problem of procedure when there has been no prejudicial reliance on that mistake.
2
The difficulty of the problems presented by the statute is illustrated by the sharply divided conclusions reached in the various opinions in cases such as United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608; United States v. Ponto, 454 F.2d 657 (CA7 1971) (en banc); United States v. Apex Distributing Co., 270 F.2d 747 (CA9 1959) (en banc).
3
The significance of this Senate Report in understanding the Act was well expressed in Serfass v. United States, supra, at 387 n. 10, 95 S.Ct., at 1061 n. 10.
'The relevance and significance of the 'well considered and carefully prepared' report of the Senate Judiciary Committee, see Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395, 71 S.Ct. 745, 751, 95 L.Ed. 1035 (1951) (Jackson, J., concurring), is not affected by the fact that the amendments proposed by the Committee and adopted without change by the Senate were modified by the House-Senate Conference Committee. See H.R.Conf.Rep.No. 91-1768, p. 21 (1970) (U.S.Code Cong & Admin.News 1970, p. 5842). The latter report contains no explanation of the changes made, and the changes themselves are consistent with the intent expressed in the Senate Report. See United States v. Wilson, ante, at 337-339, 95 S.Ct. at 1018-1019.'
4
Subsection A is entitled 'The Nature of the District Court Decision as a Limitation on Appeals from Dismissals,' and begins with the statement that '(t) he now-archaic terminology employed in the original statute . . . unnecessarily precludes the Government from appealing many dismissals of prosecutions.' S.Rep.No. 91-1296 at 5. The Report then states that the current Act 'does not provide for an appeal by the United States to any court in a large variety of cases where the dismissal is based on grounds having nothing to do with any defect in the indictment, or the construction or invalidity of the underlying statute.' Ibid. The Report gives as examples dismissals for failure of the prosecution to comply with discovery or for lack of timely prosecution. The Report then refers to the use of old common-law terms like "judgment sustaining a motion in bar," giving rise to problems like that which the Court confronted in United States v. Sisson, supra. S.Ref.No. 91-1296, p. 6.
Subpart B of the Senate Report deals with 'The Attachment of Jeopardy as a Limitation on Appeals from Dismissals.' This section was concerned with appeal of 'a decision sustaining a motion in bar after jeopardy has attached,' Ibid. Congress was concerned that a defendant could reserve issues of law until the trial and then preclude any possible review. Id., at 7. An example was a case in which the trial judge ruled the Selective Service Act unconstitutional during the trial. Id., at 11.
5
The bill provided that an appeal would lie 'from a decision, judgment or order of a district court dismissing an indictment or information or terminating a prosecution in favor of a defendant as to one or more counts, except that no appeal shall lie from a judgment of acquittal.' S. 3132.
6
When the Conference bill was reported back to both Houses, its provision on appeals was described in cautious terms hardly appropriate to a proposal to go to the constitutional limits: in the Senate, as 'authoriz(ing) appeals in certain classes of criminal cases,' 116 Cong.Rec. 42147 (1970) (remarks of Sen. McClellan) (emphasis added); in the House, as an amendment 'to broaden and clarify the right of the Government to appeal dismissals of criminal cases,' id., at 42197 (remarks of Rep. Celler).
7
As we pointed out in United States v. Sanford, 429. U.S. 14, 97 S.Ct. 20, 50 L.Ed.2d 17, the mistrial in that case was entirely different because the proceedings in the trial court terminated without any decision on the merits.
'The trial of respondents on the indictment terminated, not in their favor, but in a mistrial declared, sua sponte, by the District Court. Where the trial is terminated in this manner, the classical test for determining whether the defendants may be retried without violating the Double Jeopardy Clause is stated on Mr. Justice Story's opinion for this Court in United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824): "We are of opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. . . ." Id., at 15, 97 S.Ct., at 21.
1
Fong Foo v. United States, 369 U.S. 141, 82 Court relies so heavily, is not in point. There the District Judge directed a verdict while the original trial was still in progress. Unlike the case before us, the jury there was still properly empaneled, and had not yet ever begun to deliberate. Where the District Judge interrupts the trial process, important rights of the defendant may be jeopardized. The opportunity to try the case is frustrated so that the possibility of an acquittal from the originally empaneled jury is lost. No such rights are implicated where, as here, the original trial has ended when the jury cannot agree; at that point the defendant is already subject to a second trial. Thus, the timing of the District Court's order is not, as the Court suggests, an irrelevant technicality. A midtrial judgment of acquittal interrupts the trial process at a time when the defendant is constitutionally entitled to have it proceed to verdict.
2
United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975).
| 01
|
430 U.S. 634
97 S.Ct. 1345
51 L.Ed.2d 694
Clifford L. ALEXANDER, Jr., Secretary of the Army, Appellant,v.Louis J. FIOTO.
No. 75-1704.
Argued March 1, 1977.
Decided April 4, 1977.
Syllabus
Although he met the other requirements for eligibility, appellee was denied retirement pay for his service in the National Guard on the basis of 10 U.S.C. § 1331(c). That section provides that persons who had been in the Reserves or National Guard before the termination of World War II are not 'eligible for retired pay' unless they served on active duty during wartime. Held:
1. Both the plain language of § 1331(c) and its legislative history demonstrate that Congress intended to deny benefits to those with pre-World War II service who did not also serve in wartime. Pp. 636-639.
2. Congress authorized retirement pay as an inducement to continued service in order to maintain a cadre of trained soldiers for use on active duty should the need arise; Congress had the constitutional power to decide not to offer the inducement to reservists less likely to perform such duty than others. Pp. 639-640.
409 F.Supp. 831, reversed.
Stephen L. Urbanczyk, Solicitor Gen., pro hac vice, Washington, D.C., by special leave of Court, for appellant.
David Goldfarb, Staten Island, for appellee.
Mr. Justice STEVENS delivered the opinion of the Court.
1
After World War II Congress authorized retirement pay for nonregular military personnel with at least 20 years of service in the Reserves or National Guard.1 However, under 10 U.S.C. § 1331(c), those who had been in the Reserves before World War II are not eligible for benefits unless they performed active duty during wartime.2 Appellee had no such active duty.3 He contends that he may not be denied benefits for which he is otherwise eligible simply because he had prewar service in the Guard. In the District Court he argued that the statute violates the equal protection principle inherent in the Due Process Clause of the Fifth Amendment. In this Court he also argues that the statute should be construed as merely providing that his years of prewar service must be ignored for the purpose of determining his eligibility. We reject both arguments.
2
The case is here on direct appeal from a summary judgment entered by a three-judge District Court sitting in the Eastern District of New York.4 That court ordered the Secretary of the Army to pay retirement benefits to appellee and to place the members of the class he represents on the retirement rolls.5 409 F.Supp. 831 (1976). Because the three-judge court was properly convened,6 we have jurisdiction even though the decision of the District Court can be read as resting on its interpretation of the statute rather than squarely on constitutional grounds.7
3
Section 1331(c) plainly discriminates between persons who were in the Reserves before August 16, 1945, and those who performed their first service after that date. The statute says that the members of the former group are not 'eligible for retired pay' unless they performed active duty during specified dates when the country was engaged in hostilities.
4
Appellee acknowledges that the statute creates two distinct classes of reservists. He contends, however, that the members of his class are not ineligible for benefits, but merely are prevented from counting pre-World War II service as part of the 20 years of 'satisfactory service' needed to qualify.8 The argument is foreclosed by the plain language of the statute. Moreover, the legislative history reveals a congressional purpose inconsistent with appellee's interpretation.
5
Section 1331(c) is a description of persons who are not eligible for retirement pay.9 It does not describe periods of service which may or may not be counted toward eligibility. Its text plainly disqualifies the persons it describes. Furthermore, § 1331(a), which defines the conditions of eligibility for retirement pay, states that a person meeting these conditions is entitled to retirement pay '(e)xcept as provided in subsection (c).' It is difficult to believe that language this clear could be the product of a drafting error. We are persuaded that Congress meant what it so plainly said.
6
An explanation for excluding certain persons from benefits as opposed to excluding part of their service was given by the chairman of the Senate Armed Services Committee during the hearings on the bill. He pointed out that the provision would 'make certain that no one who drops out of the Reserves to avoid service in the war is qualified under the bill. This is concurred in by the services and the Reserves.'10 The Senate Committee had been advised by the Army Chief of Staff that: 'The purpose of reservists was to fight in the war. If he did not fight in the wars we did have, we feel he should not qualify.'11
7
These comments describe a purpose to disqualify certain persons rather than merely a purpose to treat a part of their service as unsatisfactory.
8
In 1958 Congress amended § 1331(c) to remove the disqualification for persons who served in the Korean conflict.12 The history of this amendment reflects an intent to make retirement pay available for otherwise 'ineligible persons' rather than a desire to classify periods of service as satisfactory.13 The statutory language and its legislative history convincingly demonstrate that Congress made a deliberate decision to deny retirement pay to members of appellee's class.
9
Appellee argues that the Constitution requires equal treatment for all reservists with 20 years of satisfactory service and that it is totally irrational to disqualify some of them simply because they had additional years of service before August 16, 1945. We disagree.
10
The retirement pay program was intended to provide an inducement to qualified personnel to remain active in the Reserves in order to maintain a cadre of trained soldiers for use in active duty if the need should arise.14 Such an inducement would be unlikely to achieve its intended purpose if offered to persons who had dropped out of the Reserves to avoid service during the war.15 Moreover, the decision not to offer the inducement to reservists whose failure to serve was involuntary, reflects a predictive judgment that a past obstacle to active service may have a continuing effect on future availability.
11
When Congress enacted the statute in 1948, it did not penalize the members of appellee's class; it merely made a judgment that they were somewhat less desirable prospects for future active duty than others, and therefore decided not to offer them a special inducement to remain in the Reserves. The statutory exclusion is unquestionably the product of a deliberate and rational choice which Congress had the constitutional power to make.
12
The judgment of the District Court is reversed.
13
It is so ordered.
14
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
1
The Army and Air Force Vitalization and Retirement Equalization Act of 1948, 10 U.S.C. § 1331 et seq., authorizes retirement pay for reservists and guardsmen who have accumulated 20 years of eligible service, are 60 years of age, and are not disqualified by § 1331(c).
2
Section 1331(c) provides:
'No person who, before August 16, 1945, was a Reserve of an armed force, or a member of the Army without component or other category covered by section 1332(a)(1) of this title except a regular component, is eligible for retired pay under this chapter, unless he performed active duty after April 5, 1917, and before November 12, 1918, or after September 8, 1940, and before January 1, 1947, or unless he performed active duty (other than for training) after June 26, 1950, and before July 28, 1953.'
3
Appellee served in the National Guard from 1933 to 1940 and again from 1947 to 1967. The record does not reveal the reason for appellee's failure to serve during World War II. Although he was in the Guard between June 26, 1950 and July 28, 1953, he performed no active duty (other than for training) during that time; again, the record does not reveal why he did not perform active duty during the Korean hostilities. At oral argument in the District Court appellee's counsel represented that appellee had been unable to serve in World War II because of injuries received in an automobile accident, but there is no support in the record for this assertion. For purposes of this appeal, however, we assume that his failure to serve in World War II was involuntary.
4
Federal jurisdiction was predicated on 28 U.S.C. § 1361.
5
The class as certified by the District Court, App. 38, includes all
'persons at least 60 years of age who have performed 20 years of service computed under 10 USC § 1332 since August 16, 1945 and otherwise are entitled to Retired Pay for Non-Regular Military Service, except that before August 16, 1945 they were a Reserve of an armed force or a member of the Army without component and did not perform active duty after April 5, 1917 but before November 12, 1918, or after September 8, 1940 and before January 1, 1947, or after June 26, 1950 and before July 28, 1953, and therefore were disqualified from Retired Pay Benefits by virtue of 10 USC § 1331(c).' Id., at 6.
The District Court stayed its judgment as to all members of the class other than appellee.
6
The only basis for injunctive relief set forth in the complaint was the alleged unconstitutionality of § 1331(c); a three-judge court was therefore required to hear the application for injunctive relief. See 28 U.S.C. § 2282.
7
Title 28 U.S.C. § 1253 provides:
'Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.' See Philbrook v. Glodgett, 421 U.S. 707, 712-713, n. 8, 95 S.Ct. 1893, 1897-1898, 44 L.Ed.2d 525.
8
The same bill that contained § 1331(c) also created a point system for determining whether sufficient service was performed in a given year to count toward the 20-year requirement. 10 U.S.C. § 1332. Years served before the point system are automatically considered 'satisfactory service.' 10 U.S.C. § 1332(a). Appellee contends that Congress generally excluded such years of prior service because the point system had not been in effect, and therefore there was no way to determine whether substantial service had been rendered in those years. Then, appellee argues, Congress made an exception for those men who served in World War II as a reward for their wartime service.
9
Section 1331(c) is quoted in full in n. 2, supra.
10
Hearings on H.R.2744 before the Senate Committee on Armed Services, 80th Cong., 2d Sess., 77 (1948).
11
Id., at 29.
12
In the interim, there was a slight change in the language of the provision. As originally enacted, it provided that such persons would not be eligible for 'retirement benefits.' § 302(a), 62 Stat. 1087. When Title 10 was enacted into positive law, the language was changed to 'retired pay.' 70A Stat. 102. Appellee argues that the original language was ambiguous, because the phrase the 'right to accrue retirement benefits' was used elsewhere in the same Act to refer to the accrual of credit for years of satisfactory service. See § 304, 62 Stat. 1089. But we see no reason to assume that the same meaning was intended, for one section refers to 'accrual' of additional benefits, while the other refers to 'eligibility' for any benefits.
13
For instance, the Senate Report described the amendment as a bill 'to make retired pay for nonregular service available to certain persons . . ..' S.Rep.No.2188, 85th Cong., 2d Sess., 1 (1958), U.S.Code Cong. & Admin.News 1958, p. 3713. The same understanding was expressed during the House hearings by the representative of the Defense Department. He stated that '(t)he Department of Defense favors the extension of such retirement benefits to a small group of Reserve personnel who would be eligible for this benefit but for the fact that they do not meet the requirement of having performed active service during World Wars I or II.' Hearings on Consideration of S.2630, H.R.4381, H.R.8775 and H.R.781 before Subcommittee No. 1 of the House Committee on Armed Services, No. 88, 85th Cong., 2d Sess., 7897 (1957). A later colloquy is to the same effect:
'Mr. Winstead. And there would be no differential in the pay for retirement with those years counted if this passed as to what they would get if we did not pass this?
'Mr. Ducander. They won't be able to retire at all.
'Mr. Winstead. They should be covered.' Id., at 7905.
14
The Senate Report states that the primary purpose of the Act was 'to provide an inducement to members of Reserve components to remain active in the Reserves over a long period of time, thereby providing a better trained and more ready Reserve to meet the needs of our national-defense structure.' S.Rep.No. 1543, 80th Cong., 2d Sess., 9 (1948), U.S.Code Cong.Serv.1948, pp. 2161, 2168. See also Hearings on H.R.2744, n.10, supra, at 13 (testimony of Gen. Dahlquist), 22-24 (testimony of Col. Maas).
15
See the excerpt from the legislative history quoted, supra, at 638. Although the statutory exclusion is broader than necessary to accomplish that purpose, it cannot be doubted that it would apply to the persons that Congress wanted to be certain to disqualify.
| 12
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430 U.S. 704
97 S.Ct. 1671
51 L.Ed.2d 751
Willie Jasper DARDEN, petitioner,v.State of FLORIDA
No. 76-5382
Supreme Court of the United States
April 19, 1977
On Writ of Certiorari to the Supreme Court of Florida.
April 19, 1977. PER CURIAM.
1
The writ of certiorari is dismissed as improvidently granted.
2
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissents and, adhering to his view that capital punishment is in all circumstances prohibited as cruel and unusual punishment by the Eighth and Fourteenth Amendments would set aside the death sentence imposed in this case.
| 01
|
430 U.S. 703
97 S.Ct. 1671
51 L.Ed.2d 750
Susan Lynn VORCHHEIMER, by her parents Bert and Carol Vorchheimer, etc., petitioner,v.SCHOOL DISTRICT OF PHILADELPHIA et al
No. 76-37
Supreme Court of the United States
April 19, 1977
On Writ of Certiorari to the United States Court of Appeals for the Third Circuit.
April 19, 1977. PER CURIAM.
1
The judgment is affirmed by an equally divided Court.
2
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
| 12
|
430 U.S. 641
97 S.Ct. 1395
51 L.Ed.2d 701
UNITED STATES, Petitioner,v.Gabriel Francis ANTELOPE et al.
No. 75-661.
Argued Jan. 18, 1977.
Decided April 19, 1977.
Syllabus
Respondents, enrolled Coeur d'Alene Indians, were indicted by a federal grand jury on charges of burglary, robbery, and murder of a non-Indian within the boundaries of their reservation. One respondent was convicted of second-degree murder only; the other two were convicted of all three crimes as charged, including first-degree murder under the felony-murder provisions of the federal-enclave murder statute, 18 U.S.C. § 1111, as made applicable to Indians by the Major Crimes Act, 18 U.S.C. § 1153. The Court of Appeals reversed on the ground that respondents had been denied their constitutional rights under the equal protection component of the Fifth Amendment's Due Process Clause. The court agreed with respondents' contention that their felony-murder convictions were racially discriminatory since a non-Indian charged with the same crime would have been subject to prosecution only under Idaho law, under which premeditation and deliberation would have had to be proved, whereas no such elements were required under the felony-murder provisions of 18 U.S.C. § 1111. Held : Respondent Indians were not deprived of the equal protection of the laws. Pp. 645-650.
(a) The federal criminal statutes enforced here are based neither in whole nor in part upon impermissible racial classifications. Federal regulation of Indian tribes is rooted in the unique status of Indians as "a separate people" with their own political institutions, and is not to be viewed as legislation of a " 'racial' group consisting of 'Indians'. . . ." Morton v. Mancari, 417 U.S. 535, 553 n. 24, 94 S.Ct. 2474, 2484, 41 L.Ed.2d 290. Pp. 645-647.
(b) The challenged statutes do not otherwise violate equal protection. Respondents were subjected to the same body of law as any other individuals, Indian or non-Indian, charged with first-degree murder committed in a federal enclave. Congress has undoubted power to prescribe a criminal code applicable to Indian country, and the disparity between federal law and Idaho law has no equal protection or other constitutional significance. Pp. 647-650.
523 F.2d 400, reversed and remanded.
Andrew L. Frey, Washington, D. C., for petitioner.
John W. Walker, Moscow, Idaho, for respondents Leonard and William Davison.
Allen V. Bowles, Moscow, Idaho, for respondent Gabriel Antelope.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
The question presented by our grant of certiorari is whether, under the circumstances of this case, federal criminal statutes violate the Due Process Clause of the Fifth Amendment by subjecting individuals to federal prosecution by virtue of their status as Indians.
2
(1)
3
On the night of February 18, 1974, respondents, enrolled Coeur d'Alene Indians, broke into the home of Emma Johnson, an 81-year-old non-Indian, in Worley, Idaho; they robbed and killed Mrs. Johnson. Because the crimes were committed by enrolled Indians within the boundaries of the Coeur d'Alene Indian Reservation, respondents were subject to federal jurisdiction under the Major Crimes Act, 18 U.S.C. § 1153.1 They were, accordingly, indicted by a federal grand jury on charges of burglary, robbery, and murder.2 Respondent William Davison was convicted of second-degree murder only. Respondents Gabriel Francis Antelope and Leonard Davison were found guilty of all three crimes as charged, including first-degree murder under the felony-murder provisions of 18 U.S.C. § 1111,3 as made applicable to enrolled Indians by 18 U.S.C. § 1153.
4
(2)
5
In the United States Court of Appeals for the Ninth Circuit, respondents contended that their felony-murder convictions were unlawful as products of invidious racial discrimination. They argued that a non-Indian charged with precisely the same offense, namely the murder of another non-Indian within Indian country,4 would have been subject to prosecution only under Idaho law, which in contrast to the federal murder statute, 18 U.S.C. § 1111, does not contain a felony-murder provision.5 To establish the crime of first-degree murder in state court, therefore, Idaho would have had to prove premeditation and deliberation. No such elements were required under the felony-murder component of 18 U.S.C. § 1111.
6
Because of the difference between Idaho and federal law, the Court of Appeals concluded that respondents were "put at a serious racially-based disadvantage," 523 F.2d 400, 406 (1975), since the Federal Government was not required to establish premeditation and deliberation in respondents' federal prosecution. This disparity, so the Court of Appeals concluded, violated equal protection requirements implicit in the Due Process Clause of the Fifth Amendment. We granted the United States' petition for certiorari, 424 U.S. 907, 96 S.Ct. 1100, 47 L.Ed.2d 311 (1976), and we reverse.
(3)
7
The decisions of this Court leave no doubt that federal legislation with respect to Indian tribes, although relating to Indians as such, is not based upon impermissible racial classifications. Quite the contrary, classifications expressly singling out Indian tribes as subjects of legislation are expressly provided for in the Constitution6 and supported by the ensuing history of the Federal Government's relations with Indians.
8
"Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 557, 8 L.Ed. 483 (1832); they are 'a separate people' possessing 'the power of regulating their internal and social relations . . ..' " United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975).
9
Legislation with respect to these "unique aggregations" has repeatedly been sustained by this Court against claims of unlawful racial discrimination. In upholding a limited employment preference for Indians in the Bureau of Indian Affairs, we said in Morton v. Mancari, 417 U.S. 535, 552, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974):
10
"Literally every piece of legislation dealing with Indian tribes and reservations . . . single(s) out for special treatment a constituency of tribal Indians living on or near reservations. If these laws . . . were deemed invidious racial discrimination, an entire Title of the United States Code (25 U.S.C.) would be effectively erased . . .."
11
In light of that result, the Court unanimously concluded in Mancari :
12
"The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities . . .." Id., at 554, 94 S.Ct., at 2484.
13
Last Term, in Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976), we held that members of the Northern Cheyenne Tribe could be denied access to Montana State courts in connection with an adoption proceeding arising on their reservation. Unlike Mancari, the Indian plaintiffs in Fisher were being denied a benefit or privilege available to non-Indians; nevertheless, a unanimous Court dismissed the claim of racial discrimination:
14
"(W)e reject the argument that denying (the Indian plaintiffs) access to the Montana courts constitutes impermissible racial discrimination. The exclusive jurisdiction of the Tribal Court does not derive from the race of the plaintiff but rather from the quasi-sovereign status of the Northern Cheyenne Tribe under federal law." 424 U.S., at 390, 96 S.Ct., at 948.
15
Both Mancari and Fisher involved preferences or disabilities directly promoting Indian interests in self-government, whereas in the present case we are dealing, not with matters of tribal self-regulation, but with federal regulation of criminal conduct within Indian country implicating Indian interests. But the principles reaffirmed in Mancari and Fisher point more broadly to the conclusion that federal regulation of Indian affairs is not based upon impermissible classifications. Rather, such regulation is rooted in the unique status of Indians as "a separate people" with their own political institutions. Federal regulation of Indian tribes, therefore, is governance of once-sovereign political communities; it is not to be viewed as legislation of a " 'racial' group consisting of 'Indians' . . . ." Morton v. Mancari, supra, at 553 n. 24, 94 S.Ct., at 2484. Indeed, respondents were not subjected to federal criminal jurisdiction because they are of the Indian race but because they are enrolled members of the Coeur d'Alene Tribe.7 We therefore conclude that the federal criminal statutes enforced here are based neither in whole nor in part upon impermissible racial classifications.
16
(4)
17
The challenged statutes do not otherwise violate equal protection.8 We have previously observed that Indians indicted under the Major Crimes Act enjoy the same procedural benefits and privileges as all other persons within federal jurisdiction. Keeble v. United States, 412 U.S. 205, 212, 93 S.Ct. 1993, 1997, 36 L.Ed.2d 844 (1973). See 18 U.S.C. § 3242. Respondents were, therefore, subjected to the same body of law as any other individual, Indian or non-Indian, charged with first-degree murder committed in a federal enclave.9 They do not, and could not, contend otherwise.
18
There remains, then, only the disparity between federal and Idaho law as the basis for respondents' equal protection claim.10 Since Congress has undoubted constitutional power to prescribe a criminal code applicable in Indian country, United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886), it is of no consequence that the federal scheme differs from a state criminal code otherwise applicable within the boundaries of the State of Idaho. Under our federal system, the National Government does not violate equal protection when its own body of law is evenhanded,11 regardless of the laws of States with respect to the same subject matter.12
19
The Federal Government treated respondents in the same manner as all other persons within federal jurisdiction, pursuant to a regulatory scheme that did not erect impermissible racial classifications; hence, no violation of the Due Process Clause infected respondents' convictions.13
20
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
21
Reversed and remanded.
1
Title 18 U.S.C. § 1153 at the time in question provided in pertinent part:
"Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States."
The background leading up to enactment of the Major Crimes Act is discussed in Keeble v. United States, 412 U.S. 205, 209-212, 93 S.Ct. 1993, 1996-1998, 36 L.Ed.2d 844 (1973). As noted in that case, the Government has characterized the Major Crimes Act as "a carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes to punish Indians for crimes committed on Indian land." Id., at 209, 93 S.Ct., at 1996.
2
Except for the offenses enumerated in the Major Crimes Act, all crimes committed by enrolled Indians against other Indians within Indian country are subject to the jurisdiction of tribal courts. 18 U.S.C. § 1152. Not all crimes committed within Indian country are subject to federal or tribal jurisdiction, however. Under United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1882), a non-Indian charged with committing crimes against other non-Indians in Indian country is subject to prosecution under state law.
3
Title 18 U.S.C. § 1111 is the federal murder statute. It provides in pertinent part:
"(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
"Any other murder is murder in the second degree."
It should be emphasized that respondent William Davison was convicted only of second-degree murder, not felony murder, under 18 U.S.C. § 1111.
4
See n. 2, supra. Federal law ostensibly extends federal jurisdiction to all crimes occurring in Indian country, except offenses subject to tribal jurisdiction. 18 U.S.C. § 1152. However, under United States v. McBratney, supra, and cases that followed, this Court construed § 1152 and its predecessors as not applying to crimes by non-Indians against other non-Indians. Thus, respondents correctly argued that, had the perpetrators of the crimes been non-Indians, the courts of Idaho would have had jurisdiction over these charges.
5
Idaho statutes contain the following definition of first-degree murder:
"All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate and premeditated killing is murder of the first degree. Any murder of any peace officer of this state or of any municipal corporation or political subdivision thereof, when the officer is acting in line of duty, . . . shall be murder in the first degree. . . . All other kinds of murder are of the second degree." Idaho Code § 18-4003 (Supp.1976).
6
Article I, § 8, of the Constitution gives Congress power "(t)o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes."
7
As was true in Mancari, federal jurisdiction under the Major Crimes Act does not apply to "many individuals who are racially to be classified as 'Indians.' " 417 U.S., at 553 n. 24, 94 S.Ct., at 2484. Thus, the prosecution in this case offered proof that respondents are enrolled members of the Coeur d'Alene Tribe and thus not emancipated from tribal relations. Moreover, members of tribes whose official status has been terminated by congressional enactment are no longer subject, by virtue of their status, to federal criminal jurisdiction under the Major Crimes Act. United States v. Heath, 509 F.2d 16, 19 (C.A.9 1974) ("While anthropologically a Klamath Indian even after the Termination Act obviously remains an Indian, his unique status vis-a-vis the Federal Government no longer exists"). In addition, as enrolled tribal members, respondents were subjected to federal jurisdiction only because their crimes were committed within the confines of Indian country, as defined in 18 U.S.C. § 1151. Crimes occurring elsewhere would not be subject to exclusive federal jurisdiction. Puyallup Tribe v. Department of Game, 391 U.S. 392, 397 n. 11, 88 S.Ct. 1725, 1728, 20 L.Ed.2d 689 (1968).
It should be noted, however, that enrollment in an official tribe has not been held to be an absolute requirement for federal jurisdiction, at least where the Indian defendant lived on the reservation and "maintained tribal relations with the Indians thereon." Ex parte Pero, 99 F.2d 28, 30 (C.A.7 1938). See also United States v. Ives, 504 F.2d 935, 953 (C.A.9 1974) (dicta). Since respondents are enrolled tribal members, we are not called on to decide whether nonenrolled Indians are subject to 18 U.S.C. § 1153, and we therefore intimate no views on the matter.
8
Other than their argument that the federal statutes create an invidious racial classification, respondents do not seriously contend that application of federal law to Indian tribes is so irrational as to deny equal protection. See n. 11, infra. They do point, however, to Congress' relinquishment of criminal jurisdiction over Indians in six States pursuant to 18 U.S.C. § 1162. But § 1162 is simply one manifestation of Congress' continuing concern with the welfare of Indian tribes under federal guardianship. Indeed, in adopting § 1162, Congress singled out certain reservations to remain subject to federal criminal jurisdiction. Congress' selective approach in § 1162 reinforces, rather than undermines, the conclusion that legislation directed toward Indian tribes is a necessary and appropriate consequence of federal guardianship under the Constitution.
9
Federal jurisdiction would extend to crimes, regardless of the race of the perpetrator or victim, committed on federal enclaves, such as military installations, or on vessels of the United States on the high seas.
Congress has provided for federal jurisdiction over the crime of murder on a reservation, much as on other federal enclaves, 18 U.S.C. §§ 1111, 1153. But as our opinions have recognized that Indian reservations differ in certain respects from other federal enclaves, the statute has been construed as not encompassing crimes on the reservation by non-Indians against non-Indians. United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1882); see Surplus Trading Co. v. Cook, 281 U.S. 647, 651, 50 S.Ct. 455, 456, 74 L.Ed. 1091 (1930); Williams v. Lee, 358 U.S. 217, 219-220, 79 S.Ct. 269, 270-271, 3 L.Ed.2d 251 (1959); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 171, 93 S.Ct. 1257, 1262-1263, 36 L.Ed.2d 129 (1973). Federal statutes do not single out Indians as such; non-Indian defendants are also covered if the victim was a member of the tribe.
10
Respondents base their equal protection claim on the assumption that they have been disadvantaged by being prosecuted under federal law. In their view, their murder convictions were made more likely by the fact that federal prosecutors were not required to prove premeditation. However, they do not seriously question that the evidence adduced at their federal trial might well have supported a finding of premeditation and deliberation, since respondents were found to have beaten and kicked Mrs. Johnson to death during the course of a planned robbery.
11
It should be noted, however, that this Court has consistently upheld federal regulations aimed solely at tribal Indians, as opposed to all persons subject to federal jurisdiction. See, e. g., United States v. Holliday, 70 U.S. 407, 417-418, 3 Wall. 407, 417-418, 18 L.Ed. 182 (1866); Perrin v. United States, 232 U.S. 478, 482, 34 S.Ct. 387, 389, 58 L.Ed. 691 (1914). See also Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, at 613-615, n. 47, 97 S.Ct. 1361, 1376, 51 L.Ed.2d 660. Indeed, the Constitution itself provides support for legislation directed specifically at the Indian tribes. See n. 6, supra. As the Court noted in Morton v. Mancari, the Constitution therefore "singles Indians out as a proper subject for separate legislation." 417 U.S., at 552, 94 S.Ct., at 2483.
In this regard, we are not concerned with instances in which Indians tried in federal court are subjected to differing penalties and burdens of proof from those applicable to non-Indians charged with the same offense. Compare United States v. Big Crow, 523 F.2d 955 (C.A.8 1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1126, 47 L.Ed.2d 327 (1976), and United States v. Cleveland, 503 F.2d 1067 (C.A.9 1974), with United States v. Analla, 490 F.2d 1204 (C.A.10), vacated and remanded, 419 U.S. 813, 95 S.Ct. 28, 42 L.Ed.2d 40 (1974). See 18 U.S.C. § 1153 (1976 ed.) (which provides for uniform penalties for both Indians and non-Indians charged with assault resulting in serious bodily injury). That issue is not before us, and we intimate no views on it.
12
Indeed, had respondents been prosecuted under state law, they may well have argued, under this Court's holding in Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962), that the state conviction was void for want of jurisdiction. In Seymour, an enrolled member of the Colville Indian Tribe was convicted in state court of attempted burglary within Indian country. In reversing the state conviction, this Court held:
"Since the burglary with which petitioner was charged occurred on property . . . within the . . . (Indian) reservation, the courts of Washington had no jurisdiction to try him for that offense." Id., at 359, 82 S.Ct., at 429.
If state courts would have had no jurisdiction over respondents' case, then state law does not constitute a meaningful point of reference for establishing a claim of equal protection.
13
If we accepted respondents' contentions, persons charged with crimes on federal military bases or other federal enclaves could demand that their federal prosecutions be governed by state law to the extent that state law was more "lenient" than federal law. The Constitution does not authorize this kind of gamesmanship. Indeed, any such rule, even assuming its workability, is flatly inconsistent with the Supremacy Clause of the Constitution, Art. VI, cl. 2.
| 12
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430 U.S. 651
97 S.Ct. 1401
51 L.Ed.2d 711
James INGRAHAM, by his mother and next friend, Eloise Ingraham, et al., Petitioners,v.Willie J. WRIGHT, I, et al.
No. 75-6527.
Argued Nov. 2-3, 1976.
Decided April 19, 1977.
Syllabus
Petitioners, pupils in a Dade County, Fla., junior high school, filed this action in Federal District Court pursuant to 42 U.S.C. §§ 1981-1988 for damages and injunctive and declaratory relief against respondent school officials, alleging that petitioners and other students had been subjected to disciplinary corporal punishment in violation of their constitutional rights. The Florida statute then in effect authorized corporal punishment after the teacher had consulted with the principal or teacher in charge of the school, specifying that the punishment was not to be "degrading or unduly severe." A School Board regulation contained specific directions and limitations, authorizing punishment administered to a recalcitrant student's buttocks with a wooden paddle. The evidence showed that the paddling of petitioners was exceptionally harsh. The District Court granted respondents' motion to dismiss the complaint, finding no basis for constitutional relief. The Court of Appeals affirmed. Held:
1. The Cruel and Unusual Punishments Clause of the Eighth Amendment does not apply to disciplinary corporal punishment in public schools. Pp. 664-671.
(a) The history of the Eighth Amendment and the decisions of this Court make it clear that the prohibition against cruel and unusual punishment was designed to protect those convicted of crime. Pp. 664-668.
(b) There is no need to wrench the Eighth Amendment from its historical context and extend it to public school disciplinary practices. The openness of the public school and its supervision by the community afford significant safeguards against the kinds of abuses from which that Amendment protects convicted criminals. These safeguards are reinforced by the legal constraints of the common law, whereby any punishment going beyond that which is reasonably necessary for the proper education and discipline of the child may result in both civil and criminal liability. Pp. 668-671.
2. The Due Process Clause of the Fourteenth Amendment does not require notice and hearing prior to imposition of corporal punishment as that practice is authorized and limited by the common law. Pp. 672-682.
(a) Liberty within the meaning of the Fourteenth Amendment is implicated where public school authorities, acting under color of state law, deliberately punish a child for misconduct by restraint and infliction of appreciable physical pain. Freedom from bodily restraint and punishment is within the liberty interest in personal security that has historically been protected from state deprivation without due process of law. Pp. 672-674.
(b) Under the longstanding accommodation between the child's interest in personal security and the traditional common-law privilege, there can be no deprivation of substantive rights as long as the corporal punishment remains within the limits of that privilege. The child nonetheless has a strong interest in procedural safeguards that minimize the risk of wrongful punishment and provide for the resolution of disputed questions of justification. Pp. 675-676.
(c) The Florida scheme, considered in light of the openness of the school environment, affords significant protection against unjustified corporal punishment of schoolchildren. The teacher and principal must exercise prudence and restraint when they decide that corporal punishment is necessary for disciplinary purposes. If the punishment is later found to be excessive, they may be held liable in damages or be subject to criminal penalties. Where the State has thus preserved what "has always been the law of the land," United States v. Barnett, 376 U.S. 681, 692, 84 S.Ct. 984, 990, 12 L.Ed.2d 23, the case for administrative safeguards is significantly less compelling than it would otherwise be. Pp. 676-680.
(d) Imposing additional administrative safeguards as a constitutional requirement would significantly intrude into the area of educational responsibility that lies primarily with the public school authorities. Prior procedural safeguards require a diversion of educational resources, and school authorities may abandon corporal punishment as a disciplinary measure rather than incur the burdens of complying with procedural requirements. The incremental benefit of invoking the Constitution to impose prior notice and a hearing cannot justify the costs. Pp. 680-682.
525 F.2d 909, affirmed.
Bruce S. Rogow, Ft. Lauderdale, Fla., for petitioners.
Frank A. Howard, Jr., Miami, Fla., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents questions concerning the use of corporal punishment in public schools: First, whether the paddling of students as a means of maintaining school discipline constitutes cruel and unusual punishment in violation of the Eighth Amendment; and, second, to the extent that paddling is constitutionally permissible, whether the Due Process Clause of the Fourteenth Amendment requires prior notice and an opportunity to be heard.
2
* Petitioners James Ingraham and Roosevelt Andrews filed the complaint in this case on January 7, 1971, in the United States District Court for the Southern District of Florida.1 At the time both were enrolled in the Charles R. Drew Junior High School in Dade County, Fla., Ingraham in the eighth grade and Andrews in the ninth. The complaint contained three counts, each alleging a separate cause of action for deprivation of constitutional rights, under 42 U.S.C. §§ 1981-1988. Counts one and two were individual actions for damages by Ingraham and Andrews based on paddling incidents that allegedly occurred in October 1970 at Drew Junior High School. Count three was a class action for declaratory and injunctive relief filed on behalf of all students in the Dade County schools.2 Named as defendants in all counts were respondents Willie J. Wright (principal at Drew Junior High School), Lemmie Deliford (an assistant principal), Solomon Barnes (an assistant to the principal), and Edward L. Whigham (superintendent of the Dade County School System).3
3
Petitioners presented their evidence at a week-long trial before the District Court. At the close of petitioners' case, respondents moved for dismissal of count three "on the ground that upon the facts and the law the plaintiff has shown no right to relief," Fed.Rule Civ.Proc. 41(b), and for a ruling that the evidence would be insufficient to go to a jury on counts one and two.4 The District Court granted the motion as to all three counts, and dismissed the complaint without hearing evidence on behalf of the school authorities. App. 142-150.
4
Petitioners' evidence may be summarized briefly. In the 1970-1971 school year many of the 237 schools in Dade County used corporal punishment as a means of maintaining discipline pursuant to Florida legislation and a local School Board regulation.5 The statute then in effect authorized limited corporal punishment by negative inference, proscribing punishment which was "degrading or unduly severe" or which was inflicted without prior consultation with the principal or the teacher in charge of the school. Fla.Stat.Ann. § 232.27 (1961).6 The regulation, Dade County School Board Policy 5144, contained explicit directions and limitations.7 The authorized punishment consisted of paddling the recalcitrant student on the buttocks with a flat wooden paddle measuring less than two feet long, three to four inches wide, and about one-half inch thick. The normal punishment was limited to one to five "licks" or blows with the paddle and resulted in no apparent physical injury to the student. School authorities viewed corporal punishment as a less drastic means of discipline than suspension or expulsion. Contrary to the procedural requirements of the statute and regulation, teachers often paddled students on their own authority without first consulting the principal.8
5
Petitioners focused on Drew Junior High School, the school in which both Ingraham and Andrews were enrolled in the fall of 1970. In an apparent reference to Drew, the District Court found that "(t)he instances of punishment which could be characterized as severe, accepting the students' testimony as credible, took place in one junior high school." App. 147. The evidence, consisting mainly of the testimony of 16 students, suggests that the regime at Drew was exceptionally harsh. The testimony of Ingraham and Andrews, in support of their individual claims for damages, is illustrative. Because he was slow to respond to his teacher's instructions, Ingraham was subjected to more than 20 licks with a paddle while being held over a table in the principal's office. The paddling was so severe that he suffered a hematoma9 requiring medical attention and keeping him out of school for several days.10 Andrews was paddled several times for minor infractions. On two occasions he was struck on his arms, once depriving him of the full use of his arm for a week.11
6
The District Court made no findings on the credibility of the students' testimony. Rather, assuming their testimony to be credible, the court found no constitutional basis for relief. With respect to count three, the class action, the court concluded that the punishment authorized and practiced generally in the county schools violated no constitutional right. Id., at 143, 149. With respect to counts one and two, the individual damages actions, the court concluded that while corporal punishment could in some cases violate the Eighth Amendment, in this case a jury could not lawfully find "the elements of severity, arbitrary infliction, unacceptability in terms ofcontemporary standards, or gross disproportion which are necessary to bring 'punishment' to the constitutional level of 'cruel and unusual punishment.' " Id., at 143.
7
A panel of the Court of Appeals voted to reverse. 498 F.2d 248 (CA5 1974). The panel concluded that the punishment was so severe and oppressive as to violate the Eighth and Fourteenth Amendments, and that the procedures outlined in Policy 5144 failed to satisfy the requirements of the Due Process Clause. Upon rehearing, the en banc court rejected these conclusions and affirmed the judgment of the District Court. 525 F.2d 909 (1976). The full court held that the Due Process Clause did not require notice or an opportunity to be heard:
8
"In essence, we refuse to set forth, as constitutionally mandated, procedural standards for an activity which is not substantial enough, on a constitutional level, to justify the time and effort which would have to be expended by the school in adhering to those procedures or to justify further interference by federal courts into the internal affairs of public schools." Id., at 919.
9
The court also rejected the petitioners' substantive contentions. The Eighth Amendment, in the court's view, was simply inapplicable to corporal punishment in public schools. Stressing the likelihood of civil and criminal liability in state law, if petitioners' evidence were believed, the court held that "(t)he administration of corporal punishment in public schools, whether or not excessively administered, does not come within the scope of Eighth Amendment protection." Id., at 915. Nor was there any substantive violation of the Due Process Clause. The court noted that "(p)addling of recalcitrant children has long been an accepted method of promoting good behavior and instilling notions of responsibility and decorum into the mischievous heads of school children." Id., at 917. The court refused to examine instances of punishment individually:
10
"We think it a misuse of our judicial power to determine, for example, whether a teacher has acted arbitrarily in paddling a particular child for certain behavior or whether in a particular instance of misconduct five licks would have been a more appropriate punishment than ten licks. . . ." Ibid.
11
We granted certiorari, limited to the questions of cruel and unusual punishment and procedural due process. 425 U.S. 990, 96 S.Ct. 2200, 48 L.Ed.2d 815.12
II
12
In addressing the scope of the Eighth Amendment's prohibition on cruel and unusual punishment this Court has found it useful to refer to "(t)raditional common-law concepts," Powell v. Texas, 392 U.S. 514, 535, 88 S.Ct. 2145, 2155, 20 L.Ed.2d 1254 (1968) (plurality opinion), and to the "attitude(s) which our society has traditionally taken." Id., at 531, 88 S.Ct., at 2153. So, too, in defining the requirements of procedural due process under the Fifth and Fourteenth Amendments, the Court has been attuned to what "has always been the law of the land," United States v. Barnett, 376 U.S. 681, 692, 84 S.Ct. 984, 990, 12 L.Ed.2d 23 (1964), and to "traditional ideas of fair procedure." Greene v. McElroy, 360 U.S. 474, 508, 79 S.Ct. 1400, 1419, 3 L.Ed.2d 1377 (1959). We therefore begin by examining the way in which our traditions and our laws have responded to the use of corporal punishment in public schools.
13
The use of corporal punishment in this country as a means of disciplining school children dates back to the colonial period.13 It has survived the transformation of primary and secondary education from the colonials' reliance on optional private arrangements to our present system of compulsory education and dependence on public schools.14 Despite the general abandonment of corporal punishment as a means of punishing criminal offenders,15 the practice continues to play a role in the public education of school children in most parts of the country.16 Professional and public opinion is sharply divided on the practice,17 and has been for more than a century.18 Yet we can discern no trend toward its elimination.
14
At common law a single principle has governed the use of corporal punishment since before the American Revolution: Teachers may impose reasonable but not excessive force to discipline a child.19 Blackstone catalogued among the "absolute rights of individuals" the right "to security from the corporal insults of menaces, assaults, beating, and wounding," 1 W. Blackstone, Commentaries * 134, but he did not regard it a "corporal insult" for a teacher to inflict "moderate correction" on a child in his care. To the extent that force was "necessary to answer the purposes for which (the teacher) is employed," Blackstone viewed it as "justifiable or lawful." Id., at * 453; 3 id., at * 120. The basic doctrine has not changed. The prevalent rule in this country today privileges such force as a teacher or administrator "reasonably believes to be necessary for (the child's) proper control, training, or education." Restatement (Second) of Torts § 147(2) (1965); see id., § 153(2). To the extent that the force is excessive or unreasonable, the educator in virtually all States is subject to possible civil and criminal liability.20
15
Although the early cases viewed the authority of the teacher as deriving from the parents,21 the concept of parental delegation has been replaced by the view more consonant with compulsory education laws that the State itself may impose such corporal punishment as is reasonably necessary "for the proper education of the child and for the maintenance of group discipline." 1 F. Harper & F. James, Law of Torts § 3.20, p. 292 (1956).22 All of the circumstances are to be taken into account in determining whether the punishment is reasonable in a particular case. Among the most important considerations are the seriousness of the offense, the attitude and past behavior of the child, the nature and severity of the punishment, the age and strength of the child, and the availability of less severe but equally effective means of discipline. Id., at 290-291; Restatement (Second) of Torts § 150, Comments c-e, p. 268 (1965).
16
Of the 23 States that have addressed the problem through legislation, 21 have authorized the moderate use of corporal punishment in public schools.23 Of these States only a few have elaborated on the common-law test of reasonableness, typically providing for approval or notification of the child's parents,24 or for infliction of punishment only by the principal25 or in the presence of an adult witness.26 Only two States, Massachusetts and New Jersey, have prohibited all corporal punishment in their public schools.27 Where the legislatures have not acted, the state courts have uniformly preserved the common-law rule permitting teachers to use reasonable force in disciplining children in their charge.28
17
Against this background of historical and contemporary approval of reasonable corporal punishment, we turn to the constitutional questions before us.
III
18
(1) The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Bail, fines, and punishment traditionally have been associated with the criminal process, and by subjecting the three to parallel limitations the text of the Amendment suggests an intention to limit the power of those entrusted with the criminal-law function of government. An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes. We adhere to this longstanding limitation and hold that the Eighth Amendment does not apply to the paddling of children as a means of maintaining discipline in public schools.
A.
19
The history of the Eighth Amendment is well known.29 The text was taken, almost verbatim, from a provision of the Virginia Declaration of Rights of 1776, which in turn derived from the English Bill of Rights of 1689. The English version, adopted after the accession of William and Mary, was intended to curb the excesses of English judges under the reign of James II. Historians have viewed the English provision as a reaction either to the "Bloody Assize," the treason trials conducted by Chief Justice Jeffreys in 1685 after the abortive rebellion of the Duke of Monmouth,30 or to the perjury prosecution of Titus Oates in the same year.31 In either case, the exclusive concern of the English version was the conduct of judges in enforcing the criminal law. The original draft introduced in the House of Commons provided:32
20
"The requiring excessive bail of persons committed in criminal cases and imposing excessive fines, and illegal punishments, to be prevented."
21
Although the reference to "criminal cases" was eliminated from the final draft, the preservation of a similar reference in the preamble33 indicates that the deletion was without substantive significance. Thus, Blackstone treated each of the provision's three prohibitions as bearing only on criminal proceedings and judgments.34
22
The Americans who adopted the language of this part of the English Bill of Rights in framing their own State and Federal Constitutions 100 years later feared the imposition of torture and other cruel punishments not only by judges acting beyond their lawful authority, but also by legislatures engaged in making the laws by which judicial authority would be measured. Weems v. United States, 217 U.S. 349, 371-373, 30 S.Ct. 544, 550-551, 54 L.Ed. 793 (1910). Indeed, the principal concern of the American Framers appears to have been with the legislative definition of crimes and punishments. In re Kemmler, 136 U.S. 436, 446-447, 10 S.Ct. 930, 933-934, 34 L.Ed. 519 (1890); Furman v. Georgia, 408 U.S. 238, 263, 92 S.Ct. 2726, 2739, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring). But if the American provision was intended to restrain government more broadly than its English model, the subject to which it was intended to apply the criminal process was the same.
23
At the time of its ratification, the original Constitution was criticized in the Massachusetts and Virginia Conventions for its failure to provide any protection for persons convicted of crimes.35 This criticism provided the impetus for inclusion of the Eighth Amendment in the Bill of Rights. When the Eighth Amendment was debated in the First Congress, it was met by the objection that the Cruel and Unusual Punishments Clause might have the effect of outlawing what were then the common criminal punishments of hanging, whipping, and earcropping. 1 Annals of Cong. 754 (1789). The objection was not heeded, "precisely because the legislature would otherwise have had the unfettered power to prescribe punishments for crimes." Furman v. Georgia, supra, at 263, 92 S.Ct., at 2739.
B
24
In light of this history, it is not surprising to find that every decision of this Court considering whether a punishment is "cruel and unusual" within the meaning of the Eighth and Fourteenth Amendments has dealt with a criminal punishment. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (incarceration without medical care); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (execution for murder); Furman v. Georgia, supra (execution for murder); Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968) (plurality opinion) ($20 fine for public drunkenness); Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (incarceration as a criminal for addiction to narcotics); Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion) (expatriation for desertion); Louisiana ex rel Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947) (execution by electrocution after a failed first attempt); Weems v. United States, supra (15 years' imprisonment and other penalties for falsifying an official document); Howard v. Fleming, 191 U.S. 126, 24 S.Ct. 49, 48 L.Ed. 121 (1903) (10 years' imprisonment for conspiracy to defraud); In re Kemmler, supra (execution by electrocution); Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879) (execution by firing squad); Pervear v. Commonwealth, 5 Wall. 475, 18 L.Ed. 608 (1867) (fine and imprisonment at hard labor for bootlegging).
25
(2) These decisions recognize that the Cruel and Unusual Punishments Clause circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes, e. g., Estelle v. Gamble, supra; Trop v. Dulles, supra ; second, it proscribes punishment grossly disproportionate to the severity of the crime, e. g., Weems v. United States, supra; and third, it imposes substantive limits on what can be made criminal and punished as such, e. g., Robinson v. California, supra. We have recognized the last limitation as one to be applied sparingly. "The primary purpose of (the Cruel and Unusual Punishments Clause) has always been considered, and properly so, to be directed at the method or kind of punishment imposed for the violation of criminal statutes . . .." Powell v. Texas, supra, at 531-532, 88 S.Ct., at 2154 (plurality opinion).
26
In the few cases where the Court has had occasion to confront claims that impositions outside the criminal process constituted cruel and unusual punishment, it has had no difficulty finding the Eighth Amendment inapplicable. Thus, in Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893), the Court held the Eighth Amendment inapplicable to the deportation of aliens on the ground that "deportation is not a punishment for crime." Id., at 730, 13 S.Ct., at 1028; see Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549 (1924); Bugajewitz v. Adams, 228 U.S. 585, 33 S.Ct. 607, 57 L.Ed. 978 (1913). And in Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090 (1959), the Court sustained a judgment of civil contempt, resulting in incarceration pending compliance with a subpoena, against a claim that the judgment imposed cruel and unusual punishment. It was emphasized that the case involved " 'essentially a civil remedy designed for the benefit of other parties . . . exercised for centuries to secure compliance with judicial decrees.' " Id., at 81, 79 S.Ct., at 1047, quoting Green v. United States, 356 U.S. 165, 197, 78 S.Ct. 632, 650, 2 L.Ed.2d 672 (1958) (dissenting opinion).36
C
27
Petitioners acknowledge that the original design of the Cruel and Unusual Punishments Clause was to limit criminal punishments, but urge nonetheless that the prohibition should be extended to ban the paddling of schoolchildren. Observing that the Framers of the Eighth Amendment could not have envisioned our present system of public and compulsory education, with its opportunities for noncriminal punishments, petitioners contend that extension of the prohibition against cruel punishments is necessary lest we afford greater protection to criminals than to schoolchildren. It would be anomalous, they say, if schoolchildren could be beaten without constitutional redress, while hardened criminals suffering the same beatings at the hands of their jailers might have a valid claim under the Eighth Amendment. See Jackson v. Bishop, 404 F.2d 571 (CA8 1968); cf. Estelle v. Gamble, supra. Whatever force this logic may have in other settings,37 we find it an inadequate basis for wrenching the Eighth Amendment from its historical context and extending it to traditional disciplinary practices in the public schools.
28
The prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration. The prisoner's conviction entitles the State to classify him as a "criminal," and his incarceration deprives him of the freedom "to be with family and friends and to form the other enduring attachments of normal life." Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); see Meachum v. Fano, 427 U.S. 215, 224-225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). Prison brutality, as the Court of Appeals observed in this case, is "part of the total punishment to which the individual is being subjected for his crime and, as such, is a proper subject for Eighth Amendment scrutiny." 525 F.2d, at 915.38 Even so, the protection af% 65fforded ¢s670¢s by the Eighth Amendment is limited. After incarceration, only the " 'unnecessary and wanton infliction of pain,' " Estelle v. Gamble, 429 U.S., at 103, 97 S.Ct., at 291, quoting Gregg v. Georgia, 428 U.S. at 173, 96 S.Ct., at 2925, constitutes cruel and unusual punishment forbidden by the Eighth Amendment.
29
The schoolchild has little need for the protection of the Eighth Amendment. Though attendance may not always be voluntary, the public school remains an open institution. Except perhaps when very young, the child is not physically restrained from leaving school during school hours; and at the end of the school day, the child is invariably free to return home. Even while at school, the child brings with him the support of family and friends and is rarely apart from teachers and other pupils who may witness and protest any instances of mistreatment.
30
The openness of the public school and its supervision by the community afford significant safeguards against the kinds of abuses from which the Eighth Amendment protects the prisoner. In virtually every community where corporal punishment is permitted in the schools, these safeguards are reinforced by the legal constraints of the common law. Public school teachers and administrators are privileged at common law to inflict only such corporal punishment as is reasonably necessary for the proper education and discipline of the child; any punishment going beyond the privilege may result in both civil and criminal liability. See Part II, supra. As long as the schools are open to public scrutiny, there is no reason to believe that the common-law constraints will not effectively remedy and deter excesses such as those alleged in this case.39
31
We conclude that when public school teachers or administrators impose disciplinary corporal punishment, the Eighth Amendment is inapplicable. The pertinent constitutional question is whether the imposition is consonant with the requirements of due process.40
IV
32
The Fourteenth Amendment prohibits any state deprivation of life, liberty, or property without due process of law. Application of this prohibition requires the familiar two-stage analysis: We must first ask whether the asserted individual interests are encompassed within the Fourteenth Amendment's protection of "life, liberty or property"; if protected interests are implicated, we then must decide what procedures constitute "due process of law." Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct., at 2600; Board of Regents v. Roth, 408 U.S. 564, 569-572, 92 S.Ct. 2701, 2705-2707, 33 L.Ed.2d 548 (1972). See Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267 (1975). Following that analysis here, we find that corporal punishment in public schools implicates a constitutionally protected liberty interest, but we hold that the traditional common-law remedies are fully adequate to afford due process.
A.
33
(3) "(T)he range of interests protected by procedural due process is not infinite." Board of Regents v. Roth, supra, at 570, 92 S.Ct., at 2705. We have repeatedly rejected "the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause." Meachum v. Fano, 427 U.S. at 224, 96 S.Ct., at 2538. Due process is required only when a decision of the State implicates an interest within the protection of the Fourteenth Amendment. And "to determine whether due process requirements apply in the first place, we must look not to the 'weight' but to the nature of the interest at stake." Roth, supra, 408 U.S., at 570-571, 92 S.Ct., at 2705.
34
(4) The Due Process Clause of the Fifth Amendment, later incorporated into the Fourteenth, was intended to give Americans at least the protection against governmental power that they had enjoyed as Englishmen against the power of the Crown. The liberty preserved from deprivation without due process included the right "generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923); see Dent v. West Virginia, 129 U.S. 114, 123-124, 9 S.Ct. 231, 233-234, 32 L.Ed. 623 (1889). Among the historic liberties so protected was a right to be free from and to obtain judicial relief, for unjustified intrusions on personal security.41
35
While the contours of this historic liberty interest in the context of our federal system of government have not been defined precisely,42 they always have been thought to encompass freedom from bodily restraint and punishment. See Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). It is fundamental that the state cannot hold and physically punish an individual except in accordance with due process of law.
36
(5) This constitutionally protected liberty interest is at stake in this case. There is, of course a de minimis level of imposition with which the Constitution is not concerned. But at least where school authorities, acting under color of state law, deliberately decide to punish a child for misconduct by restraining the child and inflicting appreciable physical pain, we hold that Fourteenth Amendment liberty interests are implicated.43
B
37
(6) "(T)he question remains what process is due." Morrissey v. Brewer, supra, at 481, 92 S.Ct., at 2600. Were it not for the common-law privilege permitting teachers, to inflict reasonable corporal punishment on children in their care, and the availability of the traditional remedies for abuse, the case for requiring advance procedural safeguards would be strong indeed.44 But here we deal with a punishment paddling within that tradition, and the question is whether the common-law remedies are adequate to afford due process.
38
" '(D)ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. . . . Representing a profound attitude of fairness . . . 'due process' is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess. . . ." Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 162-163, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring).
39
Whether in this case the common-law remedies for excessive corporal punishment constitute due process of law must turn on an analysis of the competing interests at stake, viewed against the background of "history, reason, (and) the past course of decisions." The analysis requires consideration of three distinct factors: "First, the private interest that will be affected . . . ; second, the risk of an erroneous deprivation of such interest . . . and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the (state) interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Cf. Arnett v. Kennedy, 416 U.S. 134, 167-168, 94 S.Ct. 1633, 1650-1651, 40 L.Ed.2d 15 (1974) (Powell, J., concurring).
40
* Because it is rooted in history, the child's liberty interest in avoiding corporal punishment while in the care of public school authorities is subject to historical limitations. Under the common law, an invasion of personal security gave rise to a right to recover damages in a subsequent judicial proceeding. 3 W. Blackstone, Commentaries * 120-121. But the right of recovery was qualified by the concept of justification. Thus, there could be no recovery against a teacher who gave only "moderate correction" to a child. Id., at * 120. To the extent that the force used was reasonable in light of its purpose, it was not wrongful, but rather "justifiable or lawful." Ibid.
41
The concept that reasonable corporal punishment in school is justifiable continues to be recognized in the laws of most States. See Part II, supra. It represents "the balance struck by this country," Poe v. Ullman, 367 U.S. 497, 542, 81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting), between the child's interest in personal security and the traditional view that some limited corporal punishment may be necessary in the course of a child's education. Under that longstanding accommodation of interests, there can be no deprivation of substantive rights as long as disciplinary corporal punishment is within the limits of the common-law privilege.
42
This is not to say that the child's interest in procedural safeguards is insubstantial. The school disciplinary process is not "a totally accurate, unerring process, never mistaken and never unfair. . . ." Goss v. Lopez, 419 U.S. 565, 579-580, 95 S.Ct. 729, 739, 42 L.Ed.2d 725 (1975). In any deliberate infliction of corporal punishment on a child who is restrained for that purpose, there is some risk that the intrusion on the child's liberty will be unjustified and therefore unlawful. In these circumstances the child has a strong interest in procedural safeguards that minimize the risk of wrongful punishment and provide for the resolution of disputed questions of justification.
43
We turn now to a consideration of the safeguards that are available under applicable Florida law.
2
44
(7) Florida has continued to recognize, and indeed has strengthened by statute, the common-law right of a child not to be subjected to excessive corporal punishment in school. Under Florida law the teacher and principal of the school decide in the first instance whether corporal punishment is reasonably necessary under the circumstances in order to discipline a child who has misbehaved. But they must exercise prudence and restraint. For Florida has preserved the traditional judicial proceedings for determining whether the punishment was justified. If the punishment inflicted is later found to have been excessive not reasonably believed at the time to be necessary for the child's discipline or training the school authorities inflicting it may be held liable in damages to the child and, if malice is shown, they may be subject to criminal penalties.45
45
Although students have testified in this case to specific instances of abuse, there is every reason to believe that such mistreatment is an aberration. The uncontradicted evidence suggests that corporal punishment in the Dade County schools was, "(w)ith the exception of a few cases, . . . unremarkable in physical severity." App. 147. Moreover, because paddlings are usually inflicted in response to conduct directly observed by teachers in their presence, the risk that a child will be paddled without cause is typically insignificant. In the ordinary case, a disciplinary paddling neither threatens seriously to violate any substantive rights nor condemns the child "to suffer grievous loss of any kind." Anti-Fascist Comm. v. McGrath, 341 U.S., at 168, 71 S.Ct., at 647 (Frankfurter, J., concurring).
46
In those cases where severe punishment is contemplated, the available civil and criminal sanctions for abuse considered in light of the openness of the school environment afford significant protection against unjustified corporal punishment. See, supra, at 670. Teachers and school authorities are unlikely to inflict corporal punishment unnecessarily or excessively when a possible consequence of doing so is the institution of civil or criminal proceedings against them.46
47
(8) It still may be argued, of course, that the child's liberty interest would be better protected if the common-law remedies were supplemented by the administrative safeguards of prior notice and a hearing. We have found frequently that some kind of prior hearing is necessary to guard against arbitrary impositions on interests protected by the Fourteenth Amendment. See, e. g., Board of Regents v. Roth, 408 U.S., at 569-570, 92 S.Ct., at 2705; Wolff v. McDonnell, 418 U.S. 539, 557-558, 94 S.Ct. 2963, 2975-2976, 41 L.Ed.2d 935 (1974); cf. Friendly, 123 U.Pa.L.Rev., at 1275-1277. But where the State has preserved what "has always been the law of the land," United States v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964), the case for administrative safeguards is significantly less compelling.47
48
There is a relevant analogy in the criminal law. Although the Fourth Amendment specifically proscribes "seizure" of a person without probable cause, the risk that police will act unreasonably in arresting a suspect is not thought to require an advance determination of the facts. In United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), we reaffirmed the traditional common-law rule that police officers may make warrantless public arrests on probable cause. Although we observed that an advance determination of probable cause by a magistrate would be desirable, we declined "to transform this judicial preference into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause . . . ." Id., at 423, 96 S.Ct., at 828; see id., at 429, 96 S.Ct., at 830 (Powell, J., concurring). Despite the distinct possibility that a police officer may improperly assess the facts and thus unconstitutionally deprive an individual of liberty, we declined to depart from the traditional rule by which the officer's perception is subjected to judicial scrutiny only after the fact.48 There is no more reason to depart from tradition and require advance procedural safeguards for intrusions on personal security to which the Fourth Amendment does not apply.
3
49
But even if the need for advance procedural safeguards were clear, the question would remain whether the incremental benefit could justify the cost. Acceptance of petitioners' claims would work a transformation in the law governing corporal punishment in Florida and most other States. Given the impracticability of formulating a rule of procedural due process that varies with the severity of the particular imposition,49 the prior hearing petitioners seek would have to precede any paddling, however moderate or trivial.
50
Such a universal constitutional requirement would significantly burden the use of corporal punishment as a disciplinary measure. Hearings even informal hearings require time, personnel, and a diversion of attention from normal school pursuits. School authorities may well choose to abandon corporal punishment rather than incur the burdens of complying with the procedural requirements. Teachers, properly concerned with maintaining authority in the classroom, may well prefer to rely on other disciplinary measures which they may view as less effective rather than confront the possible disruption that prior notice and a hearing may entail.50 Paradoxically, such an alteration of disciplinary policy is most likely to occur in the ordinary case where the contemplated punishment is well within the common-law privilege.51
51
Elimination or curtailment of corporal punishment would be welcomed by many as a societal advance. But when such a policy choice may result from this Court's determination of an asserted right to due process, rather than from the normal processes of community debate and legislative action, the societal costs cannot be dismissed as insubstantial.52 We are reviewing here a legislative judgment, rooted in history and reaffirmed in the laws of many States, that corporal punishment serves important educational interests. This judgment must be viewed in light of the disciplinary problems common-place in the schools. As noted in Goss v. Lopez, 419 U.S., at 580, 95 S.Ct., at 739: "Events calling for discipline are frequent occurrences and sometimes require immediate, effective action."53 Assessment of the need for, and the appropriate means of maintaining, school discipline is committed generally to the discretion of school authorities subject to state law. "(T)he Court has repeatedly emphasized 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." Tinker v. Des Moines School Dist., 393 U.S. 503, 507, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969).54
52
"At some point the benefit of an additional safeguard to the individual affected . . . and to society in terms of increased assurance that the action is just, may be outweighed by the cost." Mathews v. Eldridge, 424 U.S., at 348, 96 S.Ct., at 909. We think that point has been reached in this case. In view of the low incidence of abuse, the openness of our schools, and the common-law safeguards that already exist, the risk of error that may result in violation of a schoolchild's substantive rights can only be regarded as minimal. Imposing additional administrative safeguards as a constitutional requirement might reduce that risk marginally, but would also entail a significant intrusion into an area of primary educational responsibility. We conclude that the Due Process Clause does not require notice and a hearing prior to the imposition of corporal punishment in the public schools, as that practice is authorized and limited by the common law.55
V
53
Petitioners cannot prevail on either of the theories before us in this case. The Eighth Amendment's prohibition against cruel and unusual punishment is inapplicable to school paddlings, and the Fourteenth Amendment's requirement of procedural due process is satisfied by Florida's preservation of common-law constraints and remedies. We therefore agree with the Court of Appeals that petitioners' evidence affords no basis for injunctive relief, and that petitioners cannot recover damages on the basis of any Eighth Amendment or procedural due process violation.
54
Affirmed.
55
Mr. Justice WHITE, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS join, dissenting.
56
Today the Court holds that corporal punishment in public schools, no matter how severe, can never be the subject of the protections afforded by the Eighth Amendment. It also holds that students in the public school systems are not constitutionally entitled to a hearing of any sort before beatings can be inflicted on them. Because I believe that these holdings are inconsistent with the prior decisions of this Court and are contrary to a reasoned analysis of the constitutional provisions involved, I respectfully dissent.
57
* A.
58
The Eighth Amendment places a flat prohibition against the infliction of "cruel and unusual punishments." This reflects a societal judgment that there are some punishments that are so barbaric and inhumane that we will not permit them to be imposed on anyone, no matter how opprobrious the offense. See Robinson v. California, 370 U.S. 660, 676, 82 S.Ct. 1417, 1425, 8 L.Ed.2d 758 (1962) (Douglas, J., concurring). If there are some punishments that are so barbaric that they may not be imposed for the commission of crimes, designated by our social system as the most thoroughly reprehensible acts an individual can commit, then, a fortiori, similar punishments may not be imposed on persons for less culpable acts, such as breaches of school discipline. Thus, if it is constitutionally impermissible to cut off someone's ear for the commission of murder, it must be unconstitutional to cut off a child's ear for being late to class.1 Although there were no ears cut off in this case, the record reveals beatings so severe that if they were inflicted on a hardened criminal for the commission of a serious crime, they might not pass constitutional muster.
59
Nevertheless, the majority holds that the Eighth Amendment "was designed to protect (only) those convicted of crimes," ante, at 664, relying on a vague and inconclusive recitation of the history of the Amendment. Yet the constitutional prohibition is against cruel and unusual punishments; nowhere is that prohibition limited or modified by the language of the Constitution. Certainly the fact that the Framers did not choose to insert the word "criminal" into the language of the Eighth Amendment is strong evidence that the Amendment was designed to prohibit all inhumane or barbaric punishments, no matter what the nature of the offense for which the punishment is imposed.
60
No one can deny that spanking of schoolchildren is "punishment" under any reasonable reading of the word, for the similarities between spanking in public schools and other forms of punishment are too obvious to ignore. Like other forms of punishment, spanking of schoolchildren involves an institutionalized response to the violation of some official rule or regulation proscribing certain conduct and is imposed for the purpose of rehabilitating the offender, deterring the offender and others like him from committing the violation in the future, and inflicting some measure of social retribution for the harm that has been done.
B
61
We are fortunate that in our society punishments that are severe enough to raise a doubt as to their constitutional validity are ordinarily not imposed without first affording the accused the full panoply of procedural safeguards provided by the criminal process.2 The effect has been that "every decision of this Court considering whether a punishment is 'cruel and unusual' within the meaning of the Eighth and Fourteenth Amendments has dealt with a criminal punishment." Ante, at 666. The Court would have us believe from this fact that there is a recognized distinction between criminal and noncriminal punishment for purposes of the Eighth Amendment. This is plainly wrong. "(E)ven a clear legislative classification of a statute as 'non-penal' would not alter the fundamental nature of a plainly penal statute." Trop v. Dulles, 356 U.S. 86, 95, 78 S.Ct. 590, 595, 2 L.Ed.2d 630 (1958) (plurality opinion). The relevant inquiry is not whether the offense for which a punishment is inflicted has been labeled as criminal, but whether the purpose of the deprivation is among those ordinarily associated with punishment, such as retribution, rehabilitation, or deterrence.3 Id., at 96, 78 S.Ct., at 595. Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963).
62
If this purposive approach were followed in the present case, it would be clear that spanking in the Florida public schools is punishment within the meaning of the Eighth Amendment. The District Court found that "(c)orporal punishment is one of a variety of measures employed in the school system for the correction of pupil behavior and the preservation of order." App., at 146. Behavior correction and preservation of order are purposes ordinarily associated with punishment.
63
Without even mentioning the purposive analysis applied in the prior decisions of this Court, the majority adopts a rule that turns on the label given to the offense for which the punishment is inflicted. Thus, the record in this case reveals that one student at Drew Junior High School received 50 licks with a paddle for allegedly making an obscene telephone call. Brief for Petitioners 13. The majority holds that the Eighth Amendment does not prohibit such punishment since it was only inflicted for a breach of school discipline. However, that same conduct is punishable as a misdemeanor under Florida law, Fla.Stat.Ann. § 365.16 (Supp.1977) and there can be little doubt that if that same "punishment" had been inflicted by an officer of the state courts for violation of § 365.16, it would have had to satisfy the requirements of the Eighth Amendment.
C
64
In fact, as the Court recognizes, the Eighth Amendment has never been confined to criminal punishments.4 Nevertheless, the majority adheres to its view that any protections afforded by the Eighth Amendment must have something to do with criminals, and it would therefore confine any exceptions to its general rule that only criminal punishments are covered by the Eighth Amendment to abuses inflicted on prisoners. Thus, if a prisoner is beaten mercilessly for a breach of discipline, he is entitled to the protection of the Eighth Amendment, while a schoolchild who commits the same breach of discipline and is similarly beaten is simply not covered.
65
The purported explanation of this anomaly is the assertion that schoolchildren have no need for the Eighth Amendment. We are told that schools are open institutions, subject to constant public scrutiny; that schoolchildren have adequate remedies under state law;5 and that prisoners suffer the social stigma of being labeled as criminals. How any of these policy considerations got into the Constitution is difficult to discern, for the Court has never considered any of these factors in determining the scope of the Eighth Amendment.6
66
The essence of the majority's argument is that schoolchildren do not need Eighth Amendment protection because corporal punishment is less subject to abuse in the public schools than it is in the prison system.7 However, it cannot be reasonably suggested that just because cruel and unusual punishments may occur less frequently under public scrutiny, they will not occur at all. The mere fact that a public flogging or a public execution would be available for all to see would not render the punishment constitutional if it were otherwise impermissible. Similarly, the majority would not suggest that a prisoner who is placed in a minimum-security prison and permitted to go home to his family on the weekends should be any less entitled to Eighth Amendment protections than his counterpart in a maximum-security prison. In short, if a punishment is so barbaric and inhumane that it goes beyond the tolerance of a civilized society, its openness to public scrutiny should have nothing to do with its constitutional validity.
67
Nor is it an adequate answer that schoolchildren may have other state and constitutional remedies available to them. Even assuming that the remedies available to public school students are adequate under Florida law,8 the availability of state remedies has never been determinative of the coverage or of the protections afforded by the Eighth Amendment. The reason is obvious. The fact that a person may have a state-law cause of action against a public official who tortures him with a thumbscrew for the commission of an antisocial act has nothing to do with the fact that such official conduct is cruel and unusual punishment prohibited by the Eighth Amendment. Indeed, the majority's view was implicitly rejected this Term in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), when the Court held that failure to provide for the medical needs of prisoners could constitute cruel and unusual punishment even though a medical malpractice remedy in tort was available to prisoners under state law. Id., at 107 n. 15, 97 S.Ct., at 293.
D
68
By holding that the Eighth Amendment protects only criminals, the majority adopts the view that one is entitled to the protections afforded by the Eighth Amendment only if he is punished for acts that are sufficiently opprobrious for society to make them "criminal." This is a curious holding in view of the fact that the more culpable the offender the more likely it is that the punishment will not be disproportionate to the offense, and consequently, the less likely it is that the punishment will be cruel and unusual.9 Conversely, a public school student who is spanked for a mere breach of discipline may sometimes have a strong argument that the punishment does not fit the offense, depending upon the severity of the beating, and therefore that it is cruel and unusual. Yet the majority would afford the student no protection no matter how inhumane and barbaric the punishment inflicted on him might be.
69
The issue presented in this phase of the case is limited to whether corporal punishment in public schools can ever be prohibited by the Eighth Amendment. I am therefore not suggesting that spanking in the public schools is in every instance prohibited by the Eighth Amendment. My own view is that it is not. I only take issue with the extreme view of the majority that corporal punishment in public schools, no matter how barbaric, inhumane, or severe, is never limited by the Eighth Amendment. Where corporal punishment becomes so severe as to be unacceptable in a civilized society, I can see no reason that it should become any more acceptable just because it is inflicted on children in the public schools.
II
70
The majority concedes that corporal punishment in the public schools implicates an interest protected by the Due Process Clause the liberty interest of the student to be free from "bodily restraint and punishment" involving "appreciable physical pain" inflicted by persons acting under color of state law. Ante, at 674. The question remaining, as the majority recognizes, is what process is due.
71
The reason that the Constitution requires a State to provide "due process of law" when it punishes an individual for misconduct is to protect the individual from erroneous or mistaken punishment that the State would not have inflicted had it found the facts in a more reliable way. See, e. g., Mathews v. Eldridge, 424 U.S. 319, 335, 344, 96 S.Ct. 893, 903, 907, 47 L.Ed.2d 18 (1976). In Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), the Court applied this principle to the school disciplinary process, holding that a student must be given an informal opportunity to be heard before he is finally suspended from public school.
72
"Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process." Id., at 580, 95 S.Ct., at 739. (Emphasis added.)
73
To guard against this risk of punishing an innocent child, the Due Process Clause requires, not an "elaborate hearing" before a neutral party, but simply "an informal give-and-take between student and disciplinarian" which gives the student "an opportunity to explain his version of the facts." Id., at 580, 582, 584, 95 S.Ct., at 741.
74
The Court now holds that these "rudimentary precautions against unfair or mistaken findings of misconduct," id., at 581, 95 S.Ct., at 740, are not required if the student is punished with "appreciable physical pain" rather than with a suspension, even though both punishments deprive the student of a constitutionally protected interest. Although the respondent school authorities provide absolutely no process to the student before the punishment is finally inflicted, the majority concludes that the student is nonetheless given due process because he can later sue the teacher and recover damages if the punishment was "excessive."
75
This tort action is utterly inadequate to protect against erroneous infliction of punishment for two reasons.10 First, under Florida law, a student punished for an act he did not commit cannot recover damages from a teacher "proceeding in utmost good faith . . . on the reports and advice of others," supra, at 692; the student has no remedy at all for punishment imposed on the basis of mistaken facts, at least as long as the punishment was reasonable from the point of view of the disciplinarian, uninformed by any prior hearing.11 The "traditional common-law remedies" on which the majority relies, ante, at 672, thus do nothing to protect the student from the danger that concerned the Court in Goss the risk of reasonable, good-faith mistake in the school disciplinary process.
76
Second, and more important, even if the student could sue for good-faith error in the infliction of punishment, the lawsuit occurs after the punishment has been finally imposed. The infliction of physical pain is final and irreparable; it cannot be undone in a subsequent proceeding. There is every reason to require, as the Court did in Goss, a few minutes of "informal give-and-take between student and disciplinarian" as a "meaningful hedge" against the erroneous infliction of irreparable injury. 419 U.S., at 583-584, 95 S.Ct., at 741.12
77
The majority's conclusion that a damages remedy for excessive corporal punishment affords adequate process rests on the novel theory that the State may punish an individual without giving him any opportunity to present his side of the story, as long as he can later recover damages from a state official if he is innocent. The logic of this theory would permit a State that punished speeding with a one-day jail sentence to make a driver serve his sentence first without a trial and then sue to recover damages for wrongful imprisonment.13 Similarly, the State could finally take away a prisoner's good-time credits for alleged disciplinary infractions and require him to bring a damages suit after he was eventually released. There is no authority for this theory, nor does the majority purport to find any,14 in the procedural due process decisions of this Court. Those cases have "consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests . . . (and that) a person's liberty is equally protected . . . ." Wolff v. McDonnell, 418 U.S. 539, 557-558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). (Emphasis added.)
78
The majority attempts to support its novel theory by drawing an analogy to warrantless arrests on probable cause, which the Court has held reasonable under the Fourth Amendment. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). This analogy fails for two reasons. First, the particular requirements of the Fourth Amendment, rooted in the "ancient common-law rule(s)" regulating police practices, id., at 418, 96 S.Ct., at 825, must be understood in the context of the criminal justice system for which that Amendment was explicitly tailored. Thus in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Court, speaking through Mr. Justice Powell, rejected the argument that procedural protections required in Goss and other due process cases should be afforded to a criminal suspect arrested without a warrant.
79
"The Fourth Amendment was tailored explicitly for the criminal justice system, and its balance between individual and public interests always has been thought to define the 'process that is due' for seizures of person or property in criminal cases, including the detention of suspects pending trial. . . . Moreover, the Fourth Amendment probable cause determination is in fact only the first state of an elaborate system, unique in jurisprudence, designed to safeguard the rights of those accused of criminal conduct. The relatively simple civil procedures (e. g., prior interview with school principal before suspension) presented in the (procedural due process) cases cited in the concurring opinion are inapposite and irrelevant in the wholly different context of the criminal justice system." Id., at 125 n. 27, 95 S.Ct., at 869. (Emphasis in last sentence added.)
80
While a case dealing with warrantless arrests is perhaps not altogether "inapposite and irrelevant in the wholly different context" of the school disciplinary process, such a case is far weaker authority than procedural due process cases such as Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), that deal with deprivations of liberty outside the criminal context.
81
Second, contrary to the majority's suggestion, ante, at 680 n. 48, the reason that the Court has upheld warrantless arrests on probable cause is not because the police officer's assessment of the facts "may be subjected to subsequent judicial scrutiny in a civil action against the law enforcement officer or in a suppression hearing . . . ." The reason that the Court has upheld arrests without warrants is that they are the "first stage of an elaborate system" of procedural protections, Gerstein v. Pugh, supra, 420 U.S., at 125 n. 27, 95 S.Ct., at 869, and that the State is not free to continue the deprivation beyond this first stage without procedures. The Constitution requires the State to provide "a fair and reliable determination of probable cause" by a judicial officer prior to the imposition of "any significant pretrial restraint of liberty" other than "a brief period of detention to take the administrative steps incident to (a warrantless) arrest." Id., at 114, 125, 95 S.Ct., at 863, 868. (Footnote omitted; emphasis added.) This "practical compromise" is made necessary because "requiring a magistrate's review of the factual justification prior to any arrest . . . would constitute an intolerable handicap for legitimate law enforcement," id., at 113, 95 S.Ct., at 862; but it is the probable-cause determination prior to any significant period of pretrial incarceration, rather than a damages action or suppression hearing, that affords the suspect due process.
82
There is, in short, no basis in logic or authority for the majority's suggestion that an action to recover damages for excessive corporal punishment "afford(s) substantially greater protection to the child than the informal conference mandated by Goss."15 The majority purports to follow the settled principle that what process is due depends on " 'the risk of an erroneous deprivation of (the protected) interest . . . and the probable value, if any, of additional or substitute procedural safeguards' ";16 it recognizes, as did Goss, the risk of error in the school disciplinary process17 and concedes that "the child has a strong interest in procedural safeguards that minimize the risk of wrongful punishment . . . ," ante, at 676; but it somehow concludes that this risk is adequately reduced by a damages remedy that never has been recognized by a Florida court, that leaves unprotected the innocent student punished by mistake, and that allows the State to punish first and hear the student's version of events later. I cannot agree.
83
The majority emphasizes, as did the dissenters in Goss, that even the "rudimentary precautions" required by that decision would impose some burden on the school disciplinary process. But those costs are no greater if the student is paddled rather than suspended; the risk of error in the punishment is no smaller; and the fear of "a significant intrusion" into the disciplinary process, ante, at 682 (cf. Goss, supra, 419 U.S., at 585, 95 S.Ct., at 741 (Powell, J., dissenting)), is just as exaggerated. The disciplinarian need only take a few minutes to give the student "notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story." 419 U.S., at 581, 95 S.Ct., at 740. In this context the Constitution requires, "if anything, less than a fair-minded school principal would impose upon himself" in order to avoid injustice.18 Id., at 583, 95 S.Ct., at 740.
84
I would reverse the judgment below.
85
Mr. Justice STEVENS, dissenting.
86
Mr. Justice WHITE's analysis of the Eighth Amendment issue is, I believe, unanswerable. I am also persuaded that his analysis of the procedural due process issue is correct. Notwithstanding my disagreement with the Court's holding on the latter question, my respect for Mr. Justice POWELL's reasoning in Part IV-B of his opinion for the Court prompts these comments.
87
The constitutional prohibition of state deprivations of life, liberty, or property without due process of law does not, by its express language, require that a hearing be provided before any deprivation may occur. To be sure, the timing of the process may be a critical element in determining its adequacy that is, in deciding what process is due in a particular context. Generally, adequate notice and a fair opportunity to be heard in advance of any deprivation of a constitutionally protected interest are essential. The Court has recognized, however, that the wording of the command that there shall be no deprivation "without" due process of law is consistent with the conclusion that a postdeprivation remedy is sometimes constitutionally sufficient.1
88
When only an invasion of a property interest is involved, there is a greater likelihood that a damages award will make a person completely whole than when an invasion of the individual's interest in freedom from bodily restraint and punishment has occurred. In the property context, therefore, frequently a postdeprivation state remedy may be all the process that the Fourteenth Amendment requires. It may also be true although I do not express an opinion on the point that an adequate state remedy for defamation may satisfy the due process requirement when a State has impaired an individual's interest in his reputation. On that hypothesis, the Court's analysis today gives rise to the thought that Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405, may have been correctly decided on an incorrect rationale. Perhaps the Court will one day agree with Mr. Justice BRENNAN's appraisal of the importance of the constitutional interest at stake in id., at 720-723, 734, 96 S.Ct., at 1170-1171, 1177 (dissenting opinion), and nevertheless conclude that an adequate state remedy may prevent every state-inflicted injury to a person's reputation from violating 42 U.S.C. § 1983.2
1
As Ingraham and Andrews were minors, the complaint was filed in the names of Eloise Ingraham, James' mother, and Willie Everett, Roosevelt's father.
2
The District Court certified the class, under Fed.Rules Civ.Proc. 23(b)(2) and (c)(1), as follows: " 'All students of the Dade County School system who are subject to the corporal punishment policies issued by the Defendant, Dade County School Board . . . .' " App. 17. One student was specifically excepted from the class by request.
3
The complaint also named the Dade County School Board as a defendant, but the Court of Appeals held that the Board was not amenable to suit under 42 U.S.C. §§ 1981-1988 and dismissed the suit against the Board for want of jurisdiction. 525 F.2d 909, 912 (CA5 1976). This aspect of the Court of Appeals' judgment is not before us.
4
Petitioners had waived their right to jury trial on the claims for damages in counts one and two, but respondents had not. The District Court proceeded initially to hear evidence only on count three, the claim for injunctive relief. At the close of petitioners' case, however, the parties agreed that the evidence offered on count three (together with certain stipulated testimony) would be considered, for purposes of a motion for directed verdict, as if it had also been offered on counts one and two. It was understood that respondents could reassert a right to jury trial if the motion were denied. App. 142.
5
The evidence does not show how many of the schools actually employed corporal punishment as a means of maintaining discipline. The authorization of the practice by the School Board extended to 231 of the schools in the 1970-1971 school year, but at least 10 of those schools did not administer corporal punishment as a matter of school policy. Id., at 137-139.
6
In the 1970-1971 school year, § 232.27 provided:
"Each teacher or other member of the staff of any school shall assume such authority for the control of pupils as may be assigned to him by the principal and shall keep good order in the classroom and in other places in which he is assigned to be in charge of pupils, but he shall not inflict corporal punishment before consulting the principal or teacher in charge of the school, and in no case shall such punishment be degrading or unduly severe in its nature. . . ."
Effective July 1, 1976, the Florida Legislature amended the law governing corporal punishment. Section 232.27 now reads:
"Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned to him by the principal or his designated representative and shall keep good order in the classroom and in other places in which he is assigned to be in charge of students. If a teacher feels that corporal punishment is necessary, at least the following procedures shall be followed:
"(1) The use of corporal punishment shall be approved in principle by the principal before it is used, but approval is not necessary for each specific instance in which it is used.
"(2) A teacher or principal may administer corporal punishment only in the presence of another adult who is informed beforehand, and in the student's presence, of the reason for the punishment.
"(3) A teacher or principal who has administered punishment shall, upon request, provide the pupil's parent or guardian with a written explanation of the reason for the punishment and the name of the other (adult) who was present." Fla.Stat.Ann. § 232.27 (1977) (codifier's notation omitted).
Corporal punishment is now defined as "the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rules." § 228.041(28). The local school boards are expressly authorized to adopt rules governing student conduct and discipline and are directed to make available codes of student conduct. § 230.23(6). Teachers and principals are given immunity from civil and criminal liability for enforcing disciplinary rules, "(e)xcept in the case of excessive force or cruel and unusual punishment . . . ." § 232.275.
7
In the 1970-1971 school year, Policy 5144 authorized corporal punishment where the failure of other means of seeking cooperation from the student made its use necessary. The regulation specified that the principal should determine the necessity for corporal punishment, that the student should understand the seriousness of the offense and the reason for the punishment, and that the punishment should be administered in the presence of another adult in circumstances not calculated to hold the student up to shame or ridicule. The regulation cautioned against using corporal punishment against a student under psychological or medical treatment, and warned that the person administering the punishment "must realize his own personal liabilities" in any case of physical injury. App. 15.
While this litigation was pending in the District Court, the Dade County School Board amended Policy 5144 to standardize the size of the paddles used in accordance with the description in the text, to proscribe striking a child with a paddle elsewhere than on the buttocks, to limit the permissible number of "licks" (five for elementary and intermediate grades and seven for junior and senior grades), and to require a contemporaneous explanation of the need for the punishment to the student and a subsequent notification to the parents. App. 126-128.
8
498 F.2d 248, 255, and n. 7 (1974) (original panel opinion), vacated on rehearing, 525 F.2d 909 (1976); App. 48, 138, 146; Exhibits 14, 15.
9
Stedman's Medical Dictionary (23d ed. 1976) defines "hematoma" as "(a) localized mass of extravasated blood that is relatively or completely confined within an organ or tissue . . . ; the blood is usually clotted (or partly clotted), and, depending on how long it has been there, may manifest various degrees of organization and decolorization."
10
App. 3-4, 18-20, 68-85, 129-136.
11
Id., at 4-5, 104-113. The similar experiences of several other students at Drew, to which they individually testified in the District Court, are summarized in the original panel opinion in the Court of Appeals, 498 F.2d, at 257-259.
12
We denied review of a third question presented in the petition for certiorari:
"Is the infliction of severe corporal punishment upon public school students arbitrary, capricious and unrelated to achieving any legitimate educational purpose and therefore violative of the Due Process Clause of the Fourteenth Amendment?" Pet. for Cert. 2.
13
See H. Falk, Corporal Punishment 11-48 (1941); N. Edwards & H. Richey, The School in the American Social Order 115-116 (1947).
14
Public and compulsory education existed in New England before the Revolution, see id., at 50-68, 78-81, 97-113, but the demand for free public schools as we now know them did not gain momentum in the country as a whole until the mid-1800's, and it was not until 1918 that compulsory school attendance laws were in force in all the States. See Brown v. Board of Education, 347 U.S. 483, 489 n. 4, 74 S.Ct. 686, 689, 98 L.Ed. 873 (1954), citing Cubberley, Public Education in the United States 408-423, 563-565 (1934 ed.); cf. Wisconsin v. Yoder, 406 U.S. 205, 226, and n. 15, 92 S.Ct. 1526, 1538, 32 L.Ed.2d 15 (1972).
15
See Jackson v. Bishop, 404 F.2d 571, 580 (CA8 1968); Falk, supra, at 85-88.
16
See K. Larson & M. Karpas, Effective Secondary School Discipline 146 (1963); A. Reitman, J. Follman, & E. Ladd, Corporal Punishment in the Public Schools 2-5 (ACLU Report 1972).
17
For samplings of scholarly opinion on the use of corporal punishment in the schools, see F. Reardon & R. Reynolds, Corporal Punishment in Pennsylvania 1-2, 34 (1975); National Education Association, Report of the Task Force on Corporal Punishment (1972); K. James, Corporal Punishment in the Public Schools 8-16 (1963). Opinion surveys taken since 1970 have consistently shown a majority of teachers and of the general public favoring moderate use of corporal punishment in the lower grades. See Reardon & Reynolds, supra, at 2, 23-26; Delaware Department of Public Instruction, Report on the Corporal Punishment Survey 48 (1974); Reitman, Follman, & Ladd, supra, at 34-35; National Education Association, supra, at 7.
18
See Falk, supra, 66-69; cf. Cooper v. McJunkin, 4 Ind. 290 (1853).
19
See 1 F. Harper & F. James, The Law of Torts § 3.20, pp. 288-292 (1956); Proehl, Tort Liability of Teachers, 12 Vand.L.Rev. 723, 734-738 (1959); W. Prosser, The Law of Torts 136-137 (4th ed. 1971).
20
See cases cited n. 28, infra. The criminal codes of many States include provisions explicitly recognizing the teacher's common-law privilege to inflict reasonable corporal punishment. E. g., Ariz.Rev.Stat.Ann. § 13-246(A)(1) (1956); Conn.Gen.Stat. § 53a-18 (1977); Neb.Rev.Stat. § 28-840(2) (1975); N.Y.Penal Law § 35.10 (McKinney 1975 and Supp.1976); Ore.Rev.Stat. § 161.205(1) (1975).
21
See Proehl, supra, at 726, and n. 13.
22
Today, corporal punishment in school is conditioned on parental approval only in California. Cal.Educ.Code § 49001 (West Supp.1977). Cf. Morrow v. Wood, 35 Wis. 59 (1874). This Court has held in a summary affirmance that parental approval of corporal punishment is not constitutionally required. Baker v. Owen, 423 U.S. 907, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975), aff'g 395 F.Supp. 294 (M.D.N.C.).
23
Cal.Educ.Code §§ 49000-49001 (West Supp.1977); Del.Code Ann., Tit. 14, § 701 (Supp.1976); Fla.Stat.Ann. § 232.27 (1977); Ga.Code Ann. §§ 32-835, 32-836 (1976); Haw.Rev.Stat. §§ 298-16 (1975 Supp.), 703-309(2) (Spec. Pamphlet 1975); Ill.Ann.Stat., c. 122, §§ 24-24, 34-84a (1977 Supp.); Ind.Code Ann. § 20-8.1-5-2 (1975); Md.Ann.Code, Art. 77, § 98B (1975) (in specified counties); Mich.Comp.Laws Ann., § 340.756 (1970); Mont.Rev.Codes Ann. § 75-6109 (1971); Nev.Rev.Stat. § 392.465 (1973); N.C.Gen.Stat. § 115-146 (1975); Ohio Rev.Code Ann. § 3319.41 (1972); Okla.Stat.Ann., Tit. 70, § 6-114 (1972); Pa.Stat.Ann., Tit. 24, § 13-1317 (Supp.1976); S.C.Code § 59-63-260 (1977); S.D.Compiled Laws Ann. § 13-32-2 (1975); Vt.Stat.Ann., Tit. 16, § 1161 (Supp.1976); Va.Code Ann. § 22-231.1 (1973); W.Va.Code, § 18A-5-1 (1977); Wyo.Stat. § 21.1-64 (Supp.1975).
24
Cal.Educ. Code § 49001 (West Supp.1977) (requiring prior parental approval in writing); Fla.Stat.Ann. § 232.27(3) (1977) (requiring a written explanation on request); Mont.Rev.Codes Ann. § 75-6109 (1971) (requiring prior parental notification).
25
Md.Ann.Code, Art. 77, § 98B (1975).
26
Fla.Stat.Ann. § 232.27 (1977); Haw.Rev.Stats. § 298-16 (1975 Supp.); Mont.Rev.Codes Ann. § 75-6109 (1971).
27
Mass.Gen.Laws Ann., c. 71, § 37G (Supp.1976); N.J.Stat.Ann. § 18A:6-1 (1968).
28
E. g., Suits v. Glover, 260 Ala. 449, 71 So.2d 49 (1954); La Frentz v. Gallagher, 105 Ariz. 255, 462 P.2d 804 (1969); Berry v. Arnold School Dist., 199 Ark. 1118, 137 S.W.2d 256 (1940); Andreozzi v. Rubano, 145 Conn. 280, 141 A.2d 639 (1958); Tinkham v. Kole, 252 Iowa 1303, 110 N.W.2d 258 (1961); Carr v. Wright, 423 S.W.2d 521 (Ky.1968); Christman v. Hickman, 225 Mo.App. 828, 37 S.W.2d 672 (1931); Simms v. School Dist. No. 1, 13 Or.App. 119, 508 P.2d 236 (1973); Marlar v. Bill, 181 Tenn. 100, 178 S.W.2d 634 (1944); Prendergast v. Masterson, 196 S.W. 246 (Tex.Civ.App.1917). See generally sources cited n. 19, supra.
29
See Gregg v. Georgia, 428 U.S. 153, 168-173, 96 S.Ct. 2909, 2920-2925, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (hereinafter joint opinion); Furman v. Georgia, 408 U.S. 238, 316-328, 92 S.Ct. 2726, 2765-2772, 33 L.Ed.2d 346 (1972) (Marshall, J., concurring); Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839 (1969).
30
See I. Brant, The Bill of Rights 155 (1965).
31
See Granucci, supra, at 852-860.
32
Id., at 855.
33
The preamble reads in part:
"WHEREAS the late King James the Second, by the assistance of divers evil counsellors, judges, and ministers employed by him, did endeavor to subvert and extirpate . . . the laws and liberties of this kingdom.
"10. And excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.
"11. And excessive fines have been imposed; and illegal and cruel punishments inflicted. . . ." R. Perry & J. Cooper, Sources of Our Liberties 245-246 (1959).
34
4 W. Blackstone, Commentaries * 297 (bail), * 379 (fines and other punishments).
35
Abraham Holmes of Massachusetts complained specifically of the absence of a provision restraining Congress in its power to determine "what kind of punishments shall be inflicted on persons convicted of crimes." 2 J. Elliot, Debates on the Federal Constitution 111 (1876). Patrick Henry was of the same mind:
"What says our (Virginia) bill of rights? 'that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' Are you not, therefore, now calling on those gentlemen who are to compose Congress, to prescribe trials and define punishments without this control? Will they find sentiments there similar to this bill of rights? You let them loose; you do more you depart from the genius of your country. . . . " 3 id., at 447.
36
In urging us to extend the Eighth Amendment to ban school paddlings, petitioners rely on the many decisions in which this Court has held that the prohibition against "cruel and unusual" punishments is not " 'fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.' " Gregg v. Georgia, 428 U.S., at 171, 96 S.Ct., at 2924 (joint opinion); see, e. g., Trop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 597-598, 2 L.Ed.2d 630 (1958) (plurality opinion); Weems v. United States, 217 U.S. 349, 373, 378, 30 S.Ct. 544, 551-553, 54 L.Ed. 793 (1910). This reliance is misplaced. Our Eighth Amendment decisions have referred to "evolving standards of decency," Trop v. Dulles, supra, 356 U.S., at 101, 78 S.Ct., at 598, only in determining whether criminal punishments are "cruel and unusual" under the Amendment.
37
Some punishments, though not labeled "criminal" by the State, may be sufficiently analogous to criminal punishments in the circumstances in which they are administered to justify application of the Eighth Amendment. Cf. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). We have no occasion in this case, for example, to consider whether or under what circumstances persons involuntarily confined in mental or juvenile institutions can claim the protection of the Eighth Amendment.
38
Judge Friendly similarly has observed that the Cruel and Unusual Punishments Clause "can fairly be deemed to be applicable to the manner in which an otherwise constitutional sentence . . . is carried out by an executioner, see Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947), or to cover conditions of confinement which may make intolerable an otherwise constitutional term of imprisonment." Johnson v. Glick, 481 F.2d 1028, 1032 (CA2), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973) (citation omitted).
39
Putting history aside as irrelevant, the dissenting opinion of Mr. Justice WHITE argues that a "purposive analysis" should control the reach of the Eighth Amendment. Post, at 686-688. There is no support whatever for this approach in the decisions of this Court. Although an imposition must be "punishment" for the Cruel and Unusual Punishments Clause to apply, the Court has never held that all punishments are subject to Eighth Amendment scrutiny. See n. 40, infra. The applicability of the Eighth Amendment always has turned on its original meaning, as demonstrated by its historical derivation. See Gregg v. Georgia, 428 U.S., at 169-173, 96 S.Ct., at 2923-2925 (joint opinion); Furman v. Georgia, 408 U.S., at 315-328, 92 S.Ct., at 2765-2772 (Marshall J., concurring).
The dissenting opinion warns that as a consequence of our decision today, teachers may "cut off a child's ear for being late to class." Post, at 684. This rhetoric bears no relation to reality or to the issues presented in this case. The laws of virtually every State forbid the excessive physical punishment of schoolchildren. Yet the logic of the dissent would make the judgment of which disciplinary punishments are reasonable and which are excessive a matter of constitutional principle in every case, to be decided ultimately by this Court. The hazards of such a broad reading of the Eighth Amendment are clear. "It is always time to say that this Nation is too large, too complex and composed of too great a diversity of peoples for any one of us to have the wisdom to establish the rules by which local Americans must govern their local affairs. The constitutional rule we are urged to adopt is not
merely revolutionary it departs from the ancient faith based on the premise that experience in making local laws by local people themselves is by far the safest guide for a nation like ours to follow." Powell v. Texas, 392 U.S. 514, 547-548, 88 S.Ct. 2145, 2161, 20 L.Ed.2d 1254 (1968) (opinion of Black, J.).
40
Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. See United States v. Lovett, 328 U.S. 303, 317-318, 66 S.Ct. 1073, 1079-1080, 90 L.Ed. 1252 (1946). Thus, in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), the plurality appropriately took the view that denationalization was an impermissible punishment for wartime desertion under the Eighth Amendment, because desertion already had been established at a criminal trial. But in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), where the Court considered denationalization as a punishment for evading the draft, the Court refused to reach the Eighth Amendment issue, holding instead that the punishment could be imposed only through the criminal process. Id., at 162-167, 186, 83 S.Ct., at 564-567, 576 and n. 43. As these cases demonstrate, the State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.
41
See 1 W. Blackstone, Commentaries * 134. Under the 39th Article of the Magna Carta, an individual could not be deprived of this right of personal security "except by the legal judgment of his peers or by the law of the land." Perry & Cooper, supra, n. 33, at 17. By subsequent enactments of Parliament during the time of Edward III, the right was protected from deprivation except "by due process of law." See Shattuck, The True Meaning of the Term "Liberty," 4 Harv.L.Rev. 365, 372-373 (1891).
42
See, e. g., Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942) (sterilization); Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (vaccination); Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251-252, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891) (physical examinations); cf. ICC v. Brimson, 154 U.S. 447, 479, 14 S.Ct. 1125, 1134, 38 L.Ed. 1047 (1894).
The right of personal security is also protected by the Fourth Amendment, which was made applicable to the States through the Fourteenth because its protection was viewed as "implicit in 'the concept of ordered liberty' . . . enshrined in the history and the basic constitutional documents of English-speaking peoples." Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949). It has been said of the Fourth Amendment that its "overriding function . . . is to protect personal privacy and dignity against unwarranted intrusion by the State." Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). But the principal concern of that Amendment's prohibition against unreasonable searches and seizures is with intrusions on privacy in the course of criminal investigations. See Whalen v. Roe, 429 U.S. 589, 604 n. 32, 97 S.Ct. 869, 879, 51 L.Ed.2d 64 (1977). Petitioners do not contend that the Fourth Amendment applies, according to its terms, to corporal punishment in public school.
43
Unlike Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), this case does not involve the state-created property interest in public education. The purpose of corporal punishment is to correct a child's behavior without interrupting his education. That corporal punishment may, in a rare case, have the unintended effect of temporarily removing a child from school affords no basis for concluding that the practice itself deprives students of property protected by the Fourteenth Amendment.
Nor does this case involve any state-created interest in liberty going beyond the Fourteenth Amendment's protection of freedom from bodily restraint and corporal punishment. Cf. Meachum v. Fano, 427 U.S. 215, 225-227, 96 S.Ct. 2532, 2538-2539, 49 L.Ed.2d 451 (1976).
44
If the common-law privilege to inflict reasonable corporal punishment in school were inapplicable, it is doubtful whether any procedure short of a trial in a criminal or juvenile court could satisfy the requirements of procedural due process for the imposition of such punishment. See United States v. Lovett, 328 U.S., at 317-318, 66 S.Ct. 1073, 1079-1080, 90 L.Ed. 1252; cf. Breed v. Jones, 421 U.S. 519, 528-529, 95 S.Ct. 1779, 1785-1786, 44 L.Ed.2d 346 (1975).
45
See supra, at 655-667, 661. The statutory prohibition against "degrading" or unnecessarily "severe" corporal punishment in former § 232.27 has been construed as a statement of the common law principle. See 1937 Op.Fla.Atty.Gen., Biennial Report of the Atty.Gen. 169 (1937-1938); cf. 1957 Op.Fla.Atty.Gen., Biennial Report of the Atty.Gen. 7, 8 (1957-1958). Florida Stat.Ann. § 827.03(3) (1976) makes malicious punishment of a child a felony. Both the District Court, App. 144, and the Court of Appeals, 525 F.2d, at 915, expressed the view that the common-law tort remedy was available to the petitioners in this case. And petitioners conceded in this Court that a teacher who inflicts excessive punishment on a child may be held both civilly and criminally liable under Florida law. Brief for Petitioners 33 n. 11, 34; Tr. of Oral Arg. 17, 52-53.
In view of the statutory adoption of the common-law rule, and the unanimity of the parties and the courts below, the doubts expressed in Mr. Justice White's dissenting opinion as to the availability of tort remedies in Florida can only be viewed as chimerical. The dissent makes much of the fact that no Florida court has ever "recognized" a damages remedy for unreasonable corporal punishment. Post, at 694 n. 11, 700. But the absence of reported Florida decisions hardly suggests that no remedy is available. Rather, it merely confirms the common-sense judgment that excessive corporal punishment is exceedingly rare in the public schools.
46
The low incidence of abuse, and the availability of established judicial remedies in the event of abuse, distinguish this case from Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). The Ohio law struck down in Goss provided for suspensions from public school of up to 10 days without "any written procedure applicable to suspensions." Id., at 567, 95 S.Ct., at 733. Although Ohio law provided generally for administrative review, Ohio Rev.Code Ann. § 2506.01 (Supp.1973), the Court assumed that the short suspensions would not be stayed pending review, with the result that the review proceeding could serve neither a deterrent nor a remedial function. 419 U.S., at 581 n. 10, 95 S.Ct., at 740. In these circumstances, the Court held the law authorizing suspensions unconstitutional for failure to require "that there be at least an informal give-and-take between student and disciplinarian, preferably prior to the suspension . . . ." Id., at 584, 95 S.Ct., at 741. The subsequent civil and criminal proceedings available in this case may be viewed as affording substantially greater protection to the child than the informal conference mandated by Goss.
47
"(P)rior hearings might well be dispensed with in many circumstances in which the state's conduct, if not adequately justified, would constitute a common-law tort. This would leave the injured plaintiff in precisely the same posture as a common-law plaintiff, and this procedural consequence would be quite harmonious with the substantive view that the fourteenth amendment encompasses the same liberties as those protected by the common law." Monaghan, Of "Liberty" and "Property," 62 Cornell L.Rev. 405, 431 (1977) (footnote omitted). See Bonner v. Coughlin, 517 F.2d 1311, 1319 (CA7 1975), modified en banc, 545 F.2d 565 (1976), cert. pending, No. 76-6204.
We have no occasion in this case, see supra, at 659, and n. 12, to decide whether or under what circumstances corporal punishment of a public school child may give rise to an independent federal cause of action to vindicate substantive rights under the Due Process Clause.
48
See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of a warrantless public arrest may be subjected to subsequent judicial scrutiny in a civil action against the law enforcement officer or in a suppression hearing to determine whether any evidence seized in the arrest may be used in a criminal trial.
49
"(P)rocedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exceptions. . . ." Mathews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 907, 47 L.Ed.2d 18 (1976).
50
If a prior hearing, with the inevitable attendant publicity within the school, resulted in rejection of the teacher's recommendation, the consequent impairment of the teacher's ability to maintain discipline in the classroom would not be insubstantial.
51
The effect of interposing prior procedural safeguards may well be to make the punishment more severe by increasing the anxiety of the child. For this reason, the school authorities in Dade County found it desirable that the punishment be inflicted as soon as possible after the infraction. App. 48-49.
52
"It may be true that procedural regularity in disciplinary proceedings promotes a sense of institutional rapport and open communication, a perception of fair treatment, and provides the offender and his fellow students a showcase of democracy at work. But . . . (r)espect for democratic institutions will equally dissipate if they are thought too ineffectual to provide their students an environment of order in which the educational process may go forward. . . ." Wilkinson, Goss v. Lopez: The Supreme Court as School Superintendent, 1975 Sup.Ct.Rev. 25, 71-72.
53
The seriousness of the disciplinary problems in the Nation's public schools has been documented in a recent congressional report, Senate Committee on the Judiciary, Subcommittee to Investigate Juvenile Delinquency, Challenge for the Third Century: Education in a Safe Environment Final Report on the Nature and Prevention of School Violence and Vandalism, 95th Cong., 1st Sess. (Comm.Print 1977).
54
The need to maintain order in a trial courtroom raises similar problems. In that context, this Court has recognized the power of the trial judge "to punish summarily and without notice or hearing contemptuous conduct committed in his presence and observed by him." Taylor v. Hayes, 418 U.S. 488, 497, 94 S.Ct. 2697, 2702, 41 L.Ed.2d 897 (1974), citing Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888). The punishment so imposed may be as severe as six months in prison. See Codispoti v. Pennsylvania, 418 U.S. 506, 513-515, 94 S.Ct. 2687, 2691-2693, 41 L.Ed.2d 912 (1974); cf. Muniz v. Hoffman, 422 U.S. 454, 475-476, 95 S.Ct. 2178, 2190, 45 L.Ed.2d 319 (1975).
55
Mr. Justice WHITE's dissenting opinion offers no manageable standards for determining what process is due in any particular case. The dissent apparently would require, as a general rule, only "an informal give-and-take between student and disciplinarian." Post, at 693. But the dissent would depart from these "minimal procedures" requiring even witnesses, counsel, and cross-examination in cases where the punishment reaches some undefined level of severity. Post, at 700 n. 18. School authorities are left to guess at the degree of punishment that will require more than an "informal give-and-take" and at the additional process that may be constitutionally required. The impracticability of such an approach is self-evident, and illustrates the hazards of ignoring the traditional solution of the common law.
We agree with the dissent that the Goss procedures will often be, "if anything, less than a fair-minded school principal would impose upon himself." Post, at 700, quoting Goss, 419 U.S., at 583, 95 S.Ct., at 740. But before this Court invokes the Constitution to impose a procedural requirement, it should be reasonably certain that the effect will be to afford protection appropriate to the constitutional interests at stake. The dissenting opinion's reading of the Constitution suggests no such beneficial result and, indeed, invites a lowering of existing constitutional standards.
1
There is little reason to fear that if the Eighth Amendment is held to apply at all to corporal punishment of school children, all paddlings, however moderate, would be prohibited. Jackson v. Bishop, 404 F.2d 571 (CA8 1968), held that any paddling or flogging of prisoners, convicted of crime and serving prison terms, violated the cruel and unusual punishment ban of the Eighth Amendment. But aside from the fact that Bishop has never been embraced by this Court, the theory of that case was not that bodily punishments are intrinsically barbaric or excessively severe but that paddling of prisoners is "degrading to the punisher and to the punished alike." Id., at 580. That approach may be acceptable in the criminal justice system, but it has little if any relevance to corporal punishment in the schools, for it can hardly be said that the use of moderate paddlings in the discipline of children is inconsistent with the country's evolving standards of decency.
On the other hand, when punishment involves a cruel, severe beating or chopping off an ear, something more than merely the dignity of the individual is involved. Whenever a given criminal punishment is "cruel and unusual" because it is inhumane or barbaric, I can think of no reason why it would be any less inhumane or barbaric when inflicted on a schoolchild, as punishment for classroom misconduct.
The issue in this case is whether spankings inflicted on public schoolchildren for breaking school rules is "punishment," not whether such punishment is "cruel and unusual." If the Eighth Amendment does not bar moderate spanking in public schools, it is because moderate spanking is not "cruel and unusual," not because it is not "punishment" as the majority suggests.
2
By no means is it suggested that just because spanking of schoolchildren is "punishment" within the meaning of the Cruel and Unusual Punishments Clause, the school disciplinary process is in any way "criminal" and therefore subject to the full panoply of criminal procedural guarantees. See Part II, INFRA. Ordinarily, the conduct for which schoolchildren are punished is not sufficiently opprobrious to be called "criminal" in our society, and even violations of school disciplinary rules that might also constitute a crime, see infra, at 688, are not subject to the criminal process. See Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), where the Court held that persons who violate prison disciplinary rules are not entitled to the full panoply of criminal procedural safeguards, even if the rule violation might also constitute a crime.
3
The majority cites Trop as one of the cases that "dealt with a criminal punishment" but neglects to follow the analysis mandated by that decision. In Trop the petitioner was convicted of desertion by a military court-martial and sentenced to three years at hard labor, forfeiture of all pay and allowances, and a dishonorable discharge. After he was punished for the offense he committed, petitioner's application for a passport was turned down. Petitioner was told that he had been deprived of the "rights of citizenship" under § 401(g) of the Nationality Act of 1940 because he had been dishonorably discharged from the Armed Forces. The plurality took the view that denationalization in this context was cruel and unusual punishment prohibited by the Eighth Amendment.
The majority would have us believe that the determinative factor in Trop was that the petitioner had been convicted of desertion; yet there is no suggestion in Trop that the disposition of the military court-martial had anything to do with the decision in that case. Instead, while recognizing that the Eighth Amendment extends only to punishments that are penal in nature, the plurality adopted a purposive approach for determining when punishment is penal.
"In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purposes of punishment that is, to reprimand the wrongdoer, to deter others, etc. it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose." 356 U.S., at 96, 78 S.Ct., at 595 (footnotes omitted).
Although the quoted passage is taken from the plurality opinion of Mr. Chief Justice Warren, joined by three other Justices, Mr. Justice Brennan, in a concurring opinion, adopted a similar approach in concluding that § 401(g) was beyond the power of Congress to enact.
4
Ante, at 669. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), a case decided this Term, the Court held that "deliberate indifference to the medical needs of prisoners" by prison officials constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Such deliberate indifference to a prisoner's medical needs clearly is not punishment inflicted for the commission of a crime; it is merely misconduct by a prison official. Similarly, the Eighth Circuit has held that whipping a prisoner with a strap in order to maintain discipline is prohibited by the Eighth Amendment. Jackson v. Bishop, 404 F.2d 571 (1968) (Blackmun, J.). See also Knecht v. Gillman, 488 F.2d 1136, 1139-1140 (CA8 1973) (injection of vomit-inducing drugs as part of aversion therapy held to be cruel and unusual); Vann v. Scott, 467 F.2d 1235, 1240-1241 (CA7 1972) (Stevens, J.) (Eighth Amendment protects runaway children against cruel and inhumane treatment, regardless of whether such treatment is labeled "rehabilitation" or "punishment").
5
By finding that bodily punishment invades a constitutionally protected liberty interest within the meaning of the Due Process Clause, the majority suggests that the Clause might also afford a remedy for excessive spanking independently of the Eighth Amendment. If this were the case, the Court's present thesis would have little practical significance. If rather than holding that the Due Process Clause affords a remedy by way of the express commands of the Eighth Amendment, the majority would recognize a cause of action under 42 U.S.C. § 1983 for a deprivation of "liberty" flowing from an excessive paddling, the Court's opinion is merely a lengthy word of advice with respect to the drafting of civil complaints.
Petitioners in this case did raise the substantive due process issue in their petition for certiorari, ante, at 659 n. 12, but consideration of that question was foreclosed by our limited grant of certiorari. If it is probable that school children would be entitled to protection under some theory of substantive due process, the Court should not now affirm the judgment below, but should amend the grant of certiorari and set this case for reargument.
6
In support of its policy considerations, the only cases from this Court cited by the majority are Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), both cases involving prisoners' rights to procedural due process.
7
There is no evidence in the record that corporal punishment has been abused in the prison systems more often than in the public schools. Indeed, corporal punishment is seldom authorized in state prisons. See Jackson v. Bishop, supra, at 580, where Mr. Justice (then Judge) Blackmun noted: "(O)nly two states still permit the use of the strap (in prisons). Thus almost uniformly has it been abolished." By relying on its own view of the nature of these two public institutions, without any evidence being heard on the question below, the majority today predicates a constitutional principle on mere armchair speculation.
8
There is some doubt that the state-law remedies available to public school children are adequate. See n. 11, infra.
9
For a penalty to be consistent with the Eighth Amendment "the punishment must not be grossly out of proportion to the severity of the crime." Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.).
10
Here, as in Goss v. Lopez, 419 U.S. 565, 580-581, n. 9, 95 S.Ct. 729, 739, 42 L.Ed.2d 725 (1975), the record suggests that there may be a substantial risk of error in the discipline administered by respondent school authorities. Respondents concede that some of the petitioners who were punished "denied misconduct" and that "in some cases the punishments may have been mistaken . . . ." Brief for Respondents 60-61. The Court of Appeals panel below noted numerous instances of students punished despite claims of innocence, 498 F.2d 248, 256-258 (CA5 1974), and was "particularly disturbed by the testimony that whole classes of students were corporally punished for the misconduct of a few." Id., at 268 n. 36. To the extent that the majority focuses on the incidence of and remedies for unduly severe punishments, it fails to address petitioners' claim that procedural safeguards are required to reduce the risk of punishments that are simply mistaken.
11
The majority's assurances to the contrary, it is unclear to me whether and to what extent Florida law provides a damages action against school officials for excessive corporal punishment. Giving the majority the benefit of every doubt, I think it is fair to say that the most a student punished on the basis of mistaken allegations of misconduct can hope for in Florida is a recovery for unreasonable or bad-faith error. But I strongly suspect that even this remedy is not available.
Although the majority does not cite a single case decided under Florida law that recognizes a student's right to sue a school official to recover damages for excessive punishment, I am willing to assume that such a tort action does exist in Florida. I nevertheless have serious doubts about whether it would ever provide a recovery to a student simply because he was punished for an offense he did not commit. All the cases in other jurisdictions cited by the majority, ante, at 663 n. 28, involved allegations of punishment disproportionate to the misconduct with which the student was charged; none of the decisions even suggest that a student could recover by showing that the teacher incorrectly imposed punishment for something the student had not done. The majority appears to agree that the damages remedy is available only in cases of punishment unreasonable in light of the misconduct charged. It states: "In those cases where severe punishment in contemplated, the available civil and criminal sanctions for abuse . . . afford significant protection against unjustified corporal punishment." Ante, at 678. (Emphasis added.)
Even if the common-law remedy for excessive punishment extends to punishment that is "excessive" only in the sense that it is imposed on the basis of mistaken facts, the school authorities are still protected from personal liability by common-law immunity. (They are protected by statutory immunity for liability for enforcing disciplinary rules "(e)xcept in the case of excessive force or cruel and unusual punishment." Fla.Stat.Ann. § 232.275 (1976).) At a minimum, this immunity would protect school officials from damages liability for reasonable mistakes made in good faith. "Although there have been differing emphases and formulations of the common-law immunity of public school officials in cases of student expulsion or suspension, state courts have generally recognized that such
officers should be protected from tort liability under state law for all good-faith, nonmalicious action taken to fulfill their official duties." Wood v. Strickland, 420 U.S. 308, 318, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975) (adopting this rule for § 1983 suits involving school discipline) (footnote omitted); see id., at 318 n. 9, 95 S.Ct., at 999 n. 9 (citing state cases). Florida has applied this rule to a police officer's determination of probable cause to arrest; the officer is not liable in damages for an arrest not based on probable cause if the officer reasonably believed that probable cause existed. Miami v. Albro, 120 So.2d 23, 26 (Fla.Dist.Ct.App.1960); cf. Middleton v. Fort Walton Beach, 113 So.2d 431 (Fla.Dist.Ct.App.1959) (police officer would be personally liable for intentional tort of making an arrest pursuant to warrant he knew to be void); Wilson v. O'Neal, 118 So.2d 101 (Fla.Dist.Ct.App.1960) (law enforcement officer not liable in damages for obtaining an arrest warrant on the basis of an incorrect identification). There is every reason to think that the Florida courts would apply a similar immunity standard in a hypothetical damages suit against a school disciplinarian.
A final limitation on the student's damages remedy under Florida law is that the student can recover only from the personal assets of the official; the school board's treasury is absolutely protected by sovereign immunity from damages for the torts of its agents. Buck v. McLean, 115 So.2d 764 (Fla.Dist.Ct.App.1959). A teacher's limited resources may deter the jury from awarding, or prevent the student from collecting, the full amount of damages to which he is entitled. Cf. Bonner v. Coughlin, 517 F.2d 1311, 1319 n. 23 (CA7 1975), modified en banc, 545 F.2d 565 (1976), cert. pending, No. 76-6204 (state law remedy affords due process where no sovereign or official immunity bars tort suit for negligence by prison guard).
12
Cf. G. M. Leasing Corp. v. United States, 429 U.S. 338, 351-359, 97 S.Ct. 619, 628-632, 50 L.Ed.2d 530 (1977). The Court there held that, in levying on a taxpayer's assets pursuant to a jeopardy assessment, revenue agents must obtain a warrant before searching the taxpayer's office but not before seizing his property in a manner that involves no invasion of privacy. G. M. Leasing thus reflects the principle that the case for advance procedural safeguards (such as a magistrate's determination of probable cause) is more compelling when the Government finally inflicts an injury that cannot be repaired in a subsequent judicial proceeding (invasion of privacy) than when it inflicts a temporary injury which can be undone (seizure of property). The infliction of bodily punishment, like the invasion of privacy presents this most compelling case for advance procedural safeguards.
13
To the extent that the majority attempts to find "a relevant analogy in the criminal law" warrantless arrests on probable cause to its holding here, ante, at 679-680 (and see infra, at 697-699), it has chosen the wrong analogy. If the majority forthrightly applied its present due process analysis to the area of criminal prosecutions, the police officer not only could arrest a suspect without a warrant but also could convict the suspect without a trial and sentence him to a short jail term. The accused would get his due process in a tort suit for false imprisonment.
14
For the proposition that the need for a prior hearing is "significantly
less compelling" where the State has preserved "common-law remedies," ante, at 679, 678, the majority cites only one case, Bonner v. Coughlin, supra, dismissing an allegation by a prisoner that prison guards acting under color of state law had deprived him of property without due process of law by negligently failing to close the door of his cell after a search, with the foreseeable consequence that his trial transcript was stolen. The panel held that the right to recover under state law for the negligence of state employees provided the prisoner with due process of law. The decision is distinguishable from the instant case on two grounds. First, recovery was not barred by sovereign or official immunity, and the state remedy ensured that the prisoner would be "made whole for any loss of property." 517 F.2d, at 1319, and n. 23. Cf. Regional Rail Reorganization Act Cases, 419 U.S. 102, 156, 95 S.Ct. 335, 365, 42 L.Ed.2d 320 (1974). The point here, of course, is that the student cannot be made whole for the infliction of wrongful punishment. Second, the State cannot hold a pre-deprivation hearing where it does not intend to inflict the deprivation; the best it can do to protect the individual from an unauthorized and inadvertent act is to provide a damages remedy. 517 F.2d, at 1319 n. 25. Here the deprivation is intentional and a prior hearing altogether feasible.
15
Ante, 678 n. 46.
16
Ante, at 675, quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).
17
Ante, at 676, quoting Goss, supra, 419 U.S., at 579-580, 95 S.Ct., at 739. Elsewhere in its opinion the majority asserts that the risk of error is "typically insignificant" because "paddlings are usually inflicted in response to conduct directly observed by teachers in their presence." Ante, at 677-678. But it cites no finding or evidence in the record for this assertion, and there is no such restriction in the statute or regulations authorizing corporal punishment. See ante, at 655 n. 6, 656 n. 7. Indeed, the panel below noted specific instances in which students were punished by an assistant to the principal who was not present when the alleged offenses were committed. 498 F.2d, at 257, 259.
18
My view here expressed that the minimal procedures of Goss are required for any corporal punishment implicating the student's liberty interest is, of course, not meant to imply that this minimum would be constitutionally sufficient no matter how severe the punishment inflicted. The Court made this reservation explicit in Goss by suggesting that more elaborate procedures such as witnesses, counsel, and cross-examination might well be required for suspensions longer than the 10-day maximum involved in that case. 419 U.S., at 583-584, 95 S.Ct., at 740-741. A similar caveat is appropriate here.
1
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452; Fuentes v. Shevin, 407 U.S. 67, 82, 90-92, 92 S.Ct. 1983, 1995, 1999-2000, 32 L.Ed.2d 556; Ewing v. Mytinger & Casselberry, 339 U.S. 594, 598-600, 70 S.Ct. 870, 872-873, 94 L.Ed. 1088; Phillips v. Commissioner, 283 U.S. 589, 595-599, 51 S.Ct. 608, 611-612, 75 L.Ed. 1289; Lawton v. Steele, 152 U.S. 133, 140-142, 14 S.Ct. 499, 502-503, 38 L.Ed. 385; cf. Gerstein v. Pugh, 420 U.S. 103, 113-114, 95 S.Ct. 854, 862-863, 43 L.Ed.2d 54.
2
Cf. Bonner v. Coughlin, 517 F.2d 1311, 1318-1320 (CA7 1975), modified en banc, 545 F.2d 565 (1976), cert. pending, No. 76-6204; see also Judge Swygert's thoughtful opinion, id., at 569-578.
| 01
|
430 U.S. 705
97 S.Ct. 1428
51 L.Ed.2d 752
Neal R. WOOLEY, etc., et al., Appellants,v.George MAYNARD et ux.
No. 75-1453.
Argued Nov. 29, 1976.
Decided April 20, 1977.
Syllabus
New Hampshire statutes require that noncommercial motor vehicles bear license plates embossed with the state motto, "Live Free or Die," and make it a misdemeanor to obscure the motto. Appellees, Maynard and his wife, who are followers of the Jehovah's Witnesses faith, view the motto as repugnant to their moral, religious, and political beliefs, and accordingly they covered up the motto on the license plates of their jointly owned family automobiles. Appellee Maynard was subsequently found guilty in state court of violating the misdemeanor statute on three separate charges and upon refusing to pay the fines imposed was sentenced to, and served, 15 days in jail. Appellees then brought this action in Federal District Court pursuant to 42 U.S.C. § 1983, seeking injunctive and declaratory relief against enforcement of the New Hampshire statutes; a three-judge court enjoined the State from arresting and prosecuting appellees in the future for covering the motto on their license plates. Held :
1. The principles of equitable restraint enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, do not preclude the District Court from exercising jurisdiction. Pp. 709-712.
(a) When a genuine threat of state prosecutions exists, a litigant is entitled to resort to a federal forum to seek redress for an alleged deprivation of federal rights, and, aside from Younger principles, may seek such redress under 42 U.S.C. § 1983. Pp. 709-710.
(b) When the relief sought is wholly prospective, i. e., to preclude further prosecution under a statute alleged to violate constitutional rights, failure to seek state appellate review of criminal convictions does not bar relief in federal court. Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482, distinguished. Pp. 710-711.
(c) The threat of repeated prosecutions in the future against both appellees, and the effect of such a continuing threat on their ability to perform the ordinary tasks of daily life that require an automobile, are sufficient to justify injunctive relief, and hence the District Court was not limited to granting declaratory relief. Pp. 711-712.
2. The State may not constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. Pp. 714-717.
(a) New Hampshire's statute, by forcing an individual, as part of his daily life indeed constantly while his automobile is in public view to be an instrument for advocating public adherence to an ideological point of view he finds unacceptable, "invades the sphere of intellect and spirit which it is the purpose of the First Amendment . . . to reserve from all official control," Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628. Pp. 714-715.
(b) The State's claimed interests in requiring display of the state motto on license plates (1) so as to facilitate the identification of passenger vehicles, and (2) so as to promote appreciation of history, individualism, and state pride, are not sufficiently compelling to justify infringement of appellees' First Amendment rights. The purpose of the first interest could be achieved by less drastic means, and the second interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for the State's ideological message. Pp. 715-717.
406 F.Supp. 1381, affirmed.
Robert V. Johnson II, Concord, N.H., for appellants.
Richard S. Kohn, Washington, D.C., for appellees.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
The issue on appeal is whether the State of New Hampshire may constitutionally enforce criminal sanctions against persons who cover the motto "Live Free or Die" on passenger vehicle license plates because that motto is repugnant to their moral and religious beliefs.
2
(1)
3
Since 1969 New Hampshire has required that noncommercial vehicles bear license plates embossed with the state motto, "Live Free or Die."1 N.H.Rev.Stat.Ann. § 263:1 (Supp. 1975). Another New Hampshire statute makes it a misdemeanor "knowingly (to obscure) . . . the figures or letters on any number plate." N.H.Rev.Stat.Ann. § 262:27-c (Supp. 1975). The term "letters" in this section has been interpreted by the State's highest court to include the state motto. State v. Hoskin, 112 N.H. 332, 295 A.2d 454 (1972).
4
Appellees George Maynard and his wife Maxine are followers of the Jehovah's Witnesses faith. The Maynards consider the New Hampshire State motto to be repugnant to their moral, religious, and political beliefs,2 and therefore assert it objectionable to disseminate this message by displaying it on their automobiles.3 Pursuant to these beliefs, the Maynards began early in 1974 to cover up the motto on their license plates.4
5
On November 27, 1974, Mr. Maynard was issued a citation for violating § 262:27-c. On December 6, 1974, he appeared pro se in Lebanon, N. H., District Court to answer the charge. After waiving his right to counsel, he entered a plea of not guilty and proceeded to explain his religious objections to the motto. The state trial judge expressed sympathy for Mr. Maynard's situation, but considered himself bound by the authority of State v. Hoskin, supra, to hold Maynard guilty. A $25 fine was imposed, but execution was suspended during "good behavior."
6
On December 28, 1974, Mr. Maynard was again charged with violating § 262:27-c. He appeared in court on January 31, 1975, and again chose to represent himself; he was found guilty, fined $50, and sentenced to six months in the Grafton County House of Corrections. The court suspended this jail sentence but ordered Mr. Maynard to also pay the $25 fine for the first offense. Maynard informed the court that, as a matter of conscience, he refused to pay the two fines. The court thereupon sentenced him to jail for a period of 15 days. He has served the full sentence.
7
Prior to trial on the second offense Mr. Maynard was charged with yet a third violation of § 262:27-c on January 3, 1975. He appeared on this complaint on the same day as for the second offense, and was, again, found guilty. This conviction was "continued for sentence" so that Maynard received no punishment in addition to the 15 days.
(2)
8
On March 4, 1975, appellees brought the present action pursuant to 42 U.S.C. § 1983 in the United States District Court for the District of New Hampshire. They sought injunctive and declaratory relief against enforcement of N.H.Rev.Stat.Ann. §§ 262:27-c, 263:1, insofar as these required displaying the state motto on their vehicle license plates, and made it a criminal offense to obscure the motto.5 On March 11, 1975, the single District Judge issued a temporary restraining order against further arrests and prosecutions of the Maynards. Because the appellees sought an injunction against a state statute on grounds of its unconstitutionality, a three-judge District Court was convened pursuant to 28 U.S.C. § 2281. Following a hearing on the merits,6 the District Court entered an order enjoining the State "from arresting and prosecuting (the Maynards) at any time in the future for covering over that portion of their license plates that contains the motto 'Live Free or Die.' "7 406 F.Supp. 1381 (1976). We noted probable jurisdiction of the appeal. 426 U.S. 946, 96 S.Ct. 3164, 49 L.Ed.2d 1183 (1976).
9
(3)
10
(1-3) Appellants argue that the District Court was precluded from exercising jurisdiction in this case by the principles of equitable restraint enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In Younger the Court recognized that principles of judicial economy, as well as proper state-federal relations, preclude federal courts from exercising equitable jurisdiction to enjoin ongoing state prosecutions. Id., at 43, 91 S.Ct., at 750. However, when a genuine threat of prosecution exists, a litigant is entitled to resort to a federal forum to seek redress for an alleged deprivation of federal rights. See Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Doran v. Salem Inn, Inc., 422 U.S. 922, 930-931, 95 S.Ct. 2561, 2567-2568, 45 L.Ed.2d 648 (1975). Younger principles aside, a litigant is entitled to resort to a federal forum in seeking redress under 42 U.S.C. § 1983 for an alleged deprivation of federal rights. Huffman v. Pursue, Ltd., 420 U.S. 592, 609-610, n. 21, 95 S.Ct. 1200, 1210-1211, 43 L.Ed.2d 482 (1975). Mr. Maynard now finds himself placed "between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in (another) criminal proceeding." Steffel v. Thompson, supra, 415 U.S., at 462, 94 S.Ct., at 1217. Mrs. Maynard, as joint owner of the family automobiles is no less likely than her husband to be subjected to state prosecution. Under these circumstances he cannot be denied consideration of a federal remedy.
11
Appellants, however, point out that Maynard failed to seek review of his criminal convictions and cite Huffman v. Pursue, Ltd., supra, for the propositions that "a necessary concomitant of Younger is that a party in appellee's posture must exhaust his state appellate remedies before seeking relief in the District Court," 420 U.S., at 608, 95 S.Ct., at 1210, and that "Younger standards must be met to justify federal intervention in a state judicial proceeding as to which a losing litigant has not exhausted his state appellate remedies," id., at 609, 95 S.Ct., at 1211. Huffman, however, is inapposite. There the appellee was seeking to prevent, by means of federal intervention enforcement of a state-court judgment declaring its theater a nuisance. We held that appellee's failure to exhaust its state appeals barred federal intervention under the principles of Younger: "Federal post-trial intervention, in a fashion designed to annul the results of a state trial . . . deprives the States of a function which quite legitimately is left to them, that of overseeing trial court dispositions of constitutional issues which arise in civil litigation over which they have jurisdiction." Ibid.
12
(4) Here, however, the suit is in no way "designed to annul the results of a state trial" since the relief sought is wholly prospective, to preclude further prosecution under a statute alleged to violate appellees' constitutional rights. Maynard has already sustained convictions and has served a sentence of imprisonment for his prior offenses.8 He does not seek to have his record expunged, or to annul any collateral effects those convictions may have, e. g., upon his driving privileges. The Maynards seek only to be free from prosecutions for future violations of the same statutes. Younger does not bar federal jurisdiction.
13
(5) In their complaint, the Maynards sought both declaratory and injunctive relief against the enforcement of the New Hampshire statutes. We have recognized that although " '(o)rdinarily . . . the practical effect of (injunctive and declaratory) relief will be virtually identical,' " Doran v. Salem Inn, supra, 422 U.S., at 931, 95 S.Ct., at 2567, quoting Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 768, 27 L.Ed.2d 688 (1971), a "district court can generally protect the interests of a federal plaintiff by entering a declaratory judgment, and therefore the stronger injunctive medicine will be unnecessary." Doran, supra, 422 U.S., at 931, 95 S.Ct., at 2567. It is correct that generally a court will not enjoin "the enforcement of a criminal statute even though unconstitutional," Spielman Motor Co. v. Dodge, 295 U.S. 89, 95, 55 S.Ct. 678, 680, 79 L.Ed. 1322 (1935), since "(s)uch a result seriously impairs the State's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of Younger," Doran, supra, 422 U.S., at 931, 95 S.Ct., at 2568. But this is not an absolute policy and in some circumstances injunctive relief may be appropriate. "To justify such interference there must be exceptional circumstances and a clear showing that an injunction is necessary in order to afford adequate protection of constitutional rights." Spielman Motor Co., supra, 295 U.S., at 95, 55 S.Ct., at 680.
14
(6) We have such a situation here for, as we have noted, three successive prosecutions were undertaken against Mr. Maynard in the span of five weeks. This is quite different from a claim for federal equitable relief when a prosecution is threatened for the first time. The threat of repeated prosecutions in the future against both him and his wife, and the effect of such a continuing threat on their ability to perform the ordinary tasks of daily life which require an automobile, is sufficient to justify injunctive relief. Cf. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). We are therefore unwilling to say that the District Court was limited to granting declaratory relief. Having determined that the District Court was not required to stay its hand as to either appellee,9 we turn to the merits of the Maynards' claim.
(4)
15
(7) The District Court held that by covering up the state motto "Live Free or Die" on his automobile license plate, Mr. Maynard was engaging in symbolic speech and that "New Hampshire's interest in the enforcement of its defacement statute is not sufficient to justify the restriction on (appellee's) constitutionally protected expression." 406 F.Supp., at 1389. We find it unnecessary to pass on the "symbolic speech" issue, since we find more appropriate First Amendment grounds to affirm the judgment of the District Court.10 We turn instead to what in our view is the essence of appellees' objection to the requirement that they display the motto "Live Free or Die" on their automobile license plates. This is succinctly summarized in the statement made by Mr. Maynard in his affidavit filed with the District Court:
16
"I refuse to be coerced by the State into advertising a slogan which I find morally, ethically, religiously and politically abhorrent." App. 5.
17
We are thus faced with the question of whether the State may constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. We hold that the State may not do so.
18
* (8, 9) We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. See Board of Education v. Barnette, 319 U.S. 624, 633-634, 63 S.Ct. 1178, 1182-1183, 87 L.Ed. 1628 (1943); id., at 645, 63 S.Ct., at 1188 (Murphy, J., concurring). A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of "individual freedom of mind." Id., at 637, 63 S.Ct., at 1185. This is illustrated by the recent case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), where we held unconstitutional a Florida statute placing an affirmative duty upon newspapers to publish the replies of political candidates whom they had criticized. We concluded that such a requirement deprived a newspaper of the fundamental right to decide what to print or omit:
19
"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 electoral coverage would be blunted or reduced. Government-enforced right of access inescapably 'dampens the vigor and limits the variety of public debate,' New York Times Co. v. Sullivan, 376 U.S. (254,) at 279 (84 S.Ct. 710, 11 L.Ed.2d 686 (1964))." Id., at 257, 94 S.Ct., at 2839 (footnote omitted).
20
(10) The Court in Barnette, supra, was faced with a state statute which required public school students to participate in daily public ceremonies by honoring the flag both with words and traditional salute gestures. In overruling its prior decision in Minersville District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940), the Court held that "a ceremony so touching matters of opinion and political attitude may (not) be imposed upon the individual by official authority under powers committed to any political organization under our Constitution." 319 U.S., at 636, 63 S.Ct., at 1184. Compelling the affirmative act of a flag salute involved a more serious infringement upon personal liberties than the passive act of carrying the state motto on a license plate, but the difference is essentially one of degree. Here, as in Barnette, we are faced with a state measure which forces an individual, as part of his daily life indeed constantly while his automobile is in public view to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable. In doing so, the State "invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control." Id., at 642, 63 S.Ct., at 1187.
21
(11) New Hampshire's statute in effect requires that appellees use their private property as a "mobile billboard" for the State's ideological message or suffer a penalty, as Maynard already has. As a condition to driving an automobile a virtual necessity for most Americans the Maynards must display "Live Free or Die" to hundreds of people each day.11 The fact that most individuals agree with the thrust of New Hampshire's motto is not the test; most Americans also find the flag salute acceptable. The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.
B
22
(12) Identifying the Maynards' interests as implicating First Amendment protections does not end our inquiry however. We must also determine whether the State's countervailing interest is sufficiently compelling to justify requiring appellees to display the state motto on their license plates. See, e. g., United States v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678-1679, 20 L.Ed.2d 672 (1968). The two interests advanced by the State are that display of the motto (1) facilitates the identification of passenger vehicles,12 and (2) promotes appreciation of history, individualism, and state pride.
23
The State first points out that passenger vehicles, but not commercial, trailer, or other vehicles are required to display the state motto. Thus, the argument proceeds, officers of the law are more easily able to determine whether passenger vehicles are carrying the proper plates. However, the record here reveals that New Hampshire passenger license plates normally consist of a specific configuration of letters and numbers, which makes them readily distinguishable from other types of plates, even without reference to the state motto.13 Even were we to credit the State's reasons and "even 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. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose." Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960) (footnotes omitted).
24
The State's second claimed interest is not ideologically neutral. The State is seeking to communicate to others an official view as to proper appreciation of history, state pride, and individualism. Of course, the State may legitimately pursue such interests in any number of ways. However, where the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message.14
25
(13) We conclude that the State of New Hampshire may not require appellees to display the state motto15 upon their vehicle license plates; and, accordingly, we affirm the judgment of the District Court.
26
Affirmed.
27
Mr. Justice WHITE, with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join in part, dissenting in part.
28
Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), held that when state proceedings are not pending, but only threatened, a declaratory judgment may be entered with respect to the state statute at issue without regard to the strictures of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). But Steffel left open whether an injunction should also issue in such circumstances. 415 U.S., at 463, 94 S.Ct., at 1217. Then Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), approved issuance by a federal court of a preliminary injunction against a threatened state prosecution, but only pending decision on the declaratory judgment and only then subject to "stringent" standards which should cause a district court to "weigh carefully the interests on both sides," since prohibiting the enforcement of the State's criminal law against the federal plaintiff, even pending final resolution of his case, "seriously impairs the State's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of Younger." Id., at 931, 95 S.Ct., at 2568. Although finding the issuance of a preliminary injunction not an abuse of discretion in that case, the Court also distinguished between a preliminary injunction pendente lite and a permanent injunction at the successful conclusion of the federal case; for "a district court can generally protect the interests of a federal plaintiff by entering a declaratory judgment, and therefore the stronger injunctive medicine will be unnecessary." Ibid.
29
Doran was thus true to the teachings of Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), where the Court held that an injunction against threatened state criminal prosecutions should not issue even though the underlying state statute had already been invalidated, relying on the established rule "that courts of equity do not ordinarily restrain criminal prosecutions." Id., at 163, 63 S.Ct., at 881. A threatened prosecution "even though alleged to be in violation of constitutional guaranties, is not a ground for equity relief . . . ." Ibid. An injunction should issue only upon a showing that the danger of irreparable injury is both "great and immediate," citing the same authorities to this effect that this Court relied on in Younger v. Harris, supra. In each of the cited cases and they do not exhaust the authorities to the same effect criminal prosecutions were not pending when this Court ruled that a federal equity court should not enter the injunction. "The general rule is that equity will not interfere to prevent the enforcement of a criminal statute even though unconstitutional. . . . To justify such interference there must be exceptional circumstances and a clear showing that an injunction is necessary in order to afford adequate protection of constitutional rights." Spielman Motor Co. v. Dodge, 295 U.S. 89, 95, 55 S.Ct. 678, 680, 79 L.Ed. 1322 (1935).
30
The Court has plainly departed from the teaching of these cases. The whole point of Douglas v. City of Jeannette's admonition against injunctive relief was that once a declaratory judgment had issued, further equitable relief would depend on the existence of unusual circumstances thereafter. Here the State's enforcement of its statute prior to the declaration of unconstitutionality by the federal court would appear to be no more than the performance of their duty by the State's law enforcement officers. If doing this much prior to the declaration of unconstitutionality amounts to unusual circumstances sufficient to warrant an injunction, the standard is obviously seriously eroded.
31
Under our cases, therefore, more is required to be shown than the Court's opinion reveals to affirm the issuance of the injunction. To that extent I dissent.
32
Mr. Justice REHNQUIST, with whom Mr. Justice BLACKMUN joins, dissenting.
33
The Court holds that a State is barred by the Federal Constitution from requiring that the state motto be displayed on a state license plate. The path that the Court travels to reach this result demonstrates the difficulty in supporting it. The Court holds that the required display of the motto is an unconstitutional "required affirmation of belief." The District Court, however, expressly refused to consider this contention, and noted that, in an analogous case, a decision of the Supreme Court of New Hampshire had reached precisely the opposite result. See State v. Hoskin, 112 N.H. 332, 295 A.2d 454 (1972). The District Court found for appellees on the ground that the obscuring of the motto was protected "symbolic speech." This Court, in relying upon a ground expressly avoided by the District Court, appears to disagree with the ground adopted by the District Court; indeed it points out that appellees' claim of symbolic expression has been "substantially undermined" by their very complaint in this action. Ante, at 713 n. 10.
34
I not only agree with the Court's implicit recognition that there is no protected "symbolic speech" in this case, but I think that that conclusion goes far to undermine the Court's ultimate holding that there is an element of protected expression here. The State has not forced appellees to "say" anything; and it has not forced them to communicate ideas with nonverbal actions reasonably likened to "speech," such as wearing a lapel button promoting a political candidate or waving a flag as a symbolic gesture. The State has simply required that all* noncommercial automobiles bear license tags with the state motto, "Live Free or Die." Appellees have not been forced to affirm or reject that motto; they are simply required by the State, under its police power, to carry a state auto license tag for identification and registration purposes.
35
In Part 4-A, the Court relies almost solely on Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). The Court cites Barnette for the proposition that there is a constitutional right, in some cases, to "refrain from speaking." Ante, at 714. What the Court does not demonstrate is that there is any "speech" or "speaking" in the context of this case. The Court also relies upon the "right to decline to foster (religious, political, and ideological) concepts," ibid., and treats the state law in this case as if it were forcing appellees to proselytize, or to advocate an ideological point of view. But this begs the question. The issue, unconfronted by the Court, is whether appellees, in displaying, as they are required to do, state license tags, the format of which is known to all as having been prescribed by the State, would be considered to be advocating political or ideological views.
36
The Court recognizes, as it must, that this case substantially differs from Barnette, in which schoolchildren were forced to recite the pledge of allegiance while giving the flag salute. Ante, at 714-715. However, the Court states "the difference is essentially one of degree." Ante, at 715. But having recognized the rather obvious differences between these two cases, the Court does not explain why the same result should obtain. The Court suggests that the test is whether the individual is forced "to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable." Ibid. But, once again, these are merely conclusory words, barren of analysis. For example, were New Hampshire to erect a multitude of billboards, each proclaiming "Live Free or Die," and tax all citizens for the cost of erection and maintenance, clearly the message would be "fostered" by the individual citizen-taxpayers and just as clearly those individuals would be "instruments" in that communication. Certainly, however, that case would not fall within the ambit of Barnette. In that case, as in this case, there is no affirmation of belief. For First Amendment principles to be implicated, the State must place the citizen in the position of either apparently to, or actually "asserting as true" the message. This was the focus of Barnette, and clearly distinguishes this case from that one.
37
In holding that the New Hampshire statute does not run afoul of our holding in Barnette, the New Hampshire Supreme Court in Hoskin, supra, at 336, 295 A.2d, at 457, aptly articulated why there is no required affirmation of belief in this case:
38
"The defendants' membership in a class of persons required to display plates bearing the State motto carries no implication and is subject to no requirement that they endorse that motto or profess to adopt it as matter of belief."
39
As found by the New Hampshire Supreme Court in Hoskin, there is nothing in state law which precludes appellees from displaying their disagreement with the state motto as long as the methods used do not obscure the license plates. Thus appellees could place on their bumper a conspicuous bumper sticker explaining in no uncertain terms that they do not profess the motto "Live Free or Die" and that they violently disagree with the connotations of that motto. Since any implication that they affirm the motto can be so easily displaced, I cannot agree that the state statutory system for motor vehicle identification and tourist promotion may be invalidated under the fiction that appellees are unconstitutionally forced to affirm, or profess belief in, the state motto.
40
The logic of the Court's opinion leads to startling, and I believe totally unacceptable, results. For example, the mottoes "In God We Trust" and "E Pluribus Unum" appear on the coin and currency of the United States. I cannot imagine that the statutes, see 18 U.S.C. §§ 331 and 333, proscribing defacement of United States currency impinge upon the First Amendment rights of an atheist. The fact that an atheist carries and uses United States currency does not, in any meaningful sense, convey any affirmation of belief on his part in the motto "In God We Trust." Similarly, there is no affirmation of belief involved in the display of state license tags upon the private automobiles involved here.
41
I would reverse the judgment of the District Court.
1
License plates are issued without the state motto for trailers, agricultural vehicles, car dealers, antique automobiles, the Governor of New Hampshire, its Congressional Representatives, its Attorney General, Justices of the State Supreme Court, veterans, chaplains of the state legislature, sheriffs, and others.
2
Mr. Maynard described his objection to the state motto:
"(B)y religious training and belief, I believe my 'government' Jehovah's Kingdom offers everlasting life. It would be contrary to that belief to give up my life for the state, even if it meant living in bondage. Although I obey all laws of the State not in conflict with my conscience, this slogan is directly at odds with my deeply held religious convictions.
". . . I also disagree with the motto on political grounds. I believe that life is more precious than freedom." Affidavit of George Maynard, App. 3.
3
At the time this suit was commenced appellees owned two automobiles, a Toyota Corolla and a Plymouth station wagon. Both automobiles were registered in New Hampshire where the Maynards are domiciled.
4
In May or June 1974 Mr. Maynard actually snipped the words "or Die" off the license plates, and then covered the resulting hole, as well as the words "Live Free," with tape. This was done, according to Mr. Maynard, because neighborhood children kept removing the tape. The Maynards have since been issued new license plates, and have disavowed any intention of physically mutilating them.
5
Appellees sought (a) injunctions against future criminal prosecutions for violation of the statutes and (b) an injunction requiring that in future years they be issued license plates that do not bear the state motto.
6
Several months elapsed between the issuance of the temporary restraining order and the hearing on the merits. This delay was occasioned by the request of the State pending consideration of a bill in the New Hampshire Legislature that would have made inclusion of the state motto on passenger vehicle license plates optional with the car owner. The bill failed to gain enactment.
7
The District Court refused to order the State of New Hampshire to issue the Maynards license plates without the state motto, although it noted that there was evidence on the record that New Hampshire could easily do so. 406 F.Supp., at 1389. See n. 1, supra.
8
As to the offense which was "continued for sentence," see supra, at 708, the District Court found that "(n)o collateral consequences will attach as a result of it unless Mr. Maynard is arrested and prosecuted for the violation of NHRSA 262:27-c at some time in the future." 406 F.Supp., at 1384.
9
If the totality of the appellants' arguments were accepted, a § 1983 action could never be brought to enjoin state criminal prosecutions. According to the appellants, Younger principles bar Mr. Maynard from seeking an injunction because he has already been subjected to prosecution. As to Mrs. Maynard, they argue, in effect, that the action is premature because no such prosecution has been instituted. Since the two spouses were similarly situated but for the fact that one has been prosecuted and one has not, we fail to see where the appellants' argument would ever leave room for federal intervention under § 1983.
10
We note that appellees' claim of symbolic expression is substantially undermined by their prayer in the District Court for issuance of special license plates not bearing the state motto. See n. 5, supra. This is hardly consistent with the stated intent to communicate affirmative opposition to the motto. Whether or not we view appellees' present practice of covering the motto with tape as sufficiently communicative to sustain a claim of symbolic expression, display of the "expurgated" plates requested by appellees would surely not satisfy that standard. See n. 1, supra; Spence v. Washington, 418 U.S. 405, 410-411, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974), United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968). (Mr. Justice Brennan does not join in this note.)
11
Some States require that certain documents bear the seal of the State or some other official stamp for purposes of recordation. Such seal might contain, albeit obscurely, a symbol or motto having political or philosophical implications. The purpose of such seal, however, is not to advertise the message it bears but simply to authenticate the document by showing the authority of its origin.
12
The Chief of Police of Lebanon, N. H., testified that "enforcement of the motor vehicle laws is facilitated by the State Motto appearing on noncommercial license plates, the benefits being the ease of distinguishing New Hampshire license plates from those of similar colors of other states and the ease of discovering misuse of license plates, for instance, the use of a 'trailer' license plate on a non-commercial vehicle." Brief for Appellants 20.
13
New Hampshire passenger vehicle license plates generally consist of two letters followed by four numbers. No other license plate category displays this combination, and no other category bears the state motto. See n. 1, supra. However, of the approximately 325,000 passenger plates in New Hampshire, 9,999 do not follow the regular pattern, displaying numbers only, preceded by no letters. App. 50-53.
14
Appellants do not explain why advocacy of these values is enhanced by display on private citizens' cars but not on the cars of officials such as the Governor, Supreme Court Justices, Members of Congress and sheriffs. See n. 1, supra.
15
It has been suggested that today's holding will be read as sanctioning the obliteration of the national motto, "In God We Trust" from United States coins and currency. That question is not before us today but we note that currency, which is passed from hand to hand, differs in significant respects from an automobile, which is readily associated with its operator. Currency is generally carried in a purse or pocket and need not be displayed to the public. The bearer of currency is thus not required to publicly advertise the national motto.
*
See ante, at 707 n. 1 for de minimis exceptions.
| 23
|
430 U.S. 723
97 S.Ct. 1439
52 L.Ed.2d 1
Oleta GRAVITT, etc., et al.v.SOUTHWESTERN BELL TELEPHONE COMPANY et al.
No. 76-1036.
April 25, 1977.
Rehearing Denied June 13, 1977. See 431 U.S. 975, 97 S.Ct. 2941.
PER CURIAM.
1
This tort action was removed from the Texas state courts to the United States District Court on the grounds of diversity of citizenship but was remanded as having been "improperly removed" when it seemed that there was not complete diversity among the parties. The Court of Appeals for the Fifth Circuit, by mandamus, ordered the District Court to vacate its remand order because the latter had employed erroneous principles in concluding that it was without jurisdiction.
2
The Court of Appeals erred. Title 28 U.S.C. § 1447(c) provides for remanding a removed action when the district court determines that "the case was removed improvidently and without jurisdiction"; and when a remand has been ordered on these grounds, 28 U.S.C. § 1447(d) unmistakably commands that the order "remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . ." The District Court's remand order was plainly within the bounds of § 1447(c) and hence was unreviewable by the Court of Appeals, by mandamus or otherwise. Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), is not to the contrary, for there the District Court remanded "on grounds wholly different from those upon which § 1447(c) permits remand." Id., at 344, 96 S.Ct., at 589. Thermtron did not question but re-emphasized the rule that § 1447(c) remands are not reviewable.
3
The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
4
Reversed and remanded.
| 89
|
430 U.S. 787
97 S.Ct. 1473
52 L.Ed.2d 50
Ramon Martin FIALLO, etc., et al., Appellants,v.Griffin B. BELL, Individually and as Attorney General of the United States, et al.
No. 75-6297.
Argued Dec. 7, 1976.
Decided April 26, 1977.
Syllabus
Sections 101(b)(1)(D) and 101(b)(2) of the Immigration and Nationality Act of 1952, which have the effect of excluding the relationship between an illegitimate child and his natural father (as opposed to his natural mother) from the special preference immigration status accorded by the Act to the "child" or "parent" of a United States citizen or lawful permanent resident, held not to be unconstitutional. Pp. 792-800.
(a) This Court's cases "have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control," Shaughnessy v. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956; see also Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683; Harisiades v. Shaughnessy, 342 U.S. 580, 588-589, 72 S.Ct. 512, 518-519, 96 L.Ed. 586, and no factors exist in the instant case warranting a more searching judicial scrutiny than has generally been applied in immigration cases. Pp. 792-796.
(b) In enacting the challenged statutory provisions Congress was specifically concerned with clarifying the previous law so that the illegitimate child in relation to his mother would have the same status as a legitimate child, and the legislative history of those provisions reflects an intentional choice not to provide preferential immigration status by virtue of the relationship between an illegitimate child and his natural father. The distinction is one of many (such as those based on age) drawn by Congress pursuant to its determination to provide some but not all families with relief from various immigration restrictions that would otherwise hinder reunification of the family in this country. The decision as to where to draw the line is a policy question within Congress' exclusive province. Pp. 797-798.
(c) Whether Congress' determination that preferential status is not warranted for illegitimate children and their natural fathers results from a perceived absence in most cases of close family ties or a concern with serious problems of proof that usually lurk in paternity determinations, it is not for the courts to probe and test the justifications for the legislative decision. Kleindienst v. Mandel, supra, 408 U.S. at 770, 92 S.Ct. at 2585. Pp. 798-799.
406 F.Supp. 162, affirmed.
Janet M. Calvo, New York City, for appellants, pro hac vice, by special leave of Court.
Harold R. Tyler, Jr., New York City, for appellees.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case brings before us a constitutional challenge to §§ 101(b)(1)(D) and 101(b)(2) of the Immigration and Nationality Act of 1952 (Act), 66 Stat. 182, as amended, 8 U.S.C. §§ 1101(b)(1)(D) and 1101(b)(2).
2
* The Act grants special preference immigration status to aliens who qualify as the "children" or "parents" of United States citizens or lawful permanent residents. Under § 101(b)(1), a "child" is defined as an unmarried person under 21 years of age who is a legitimate or legitimated child, a stepchild, an adopted child, or an illegitimate child seeking preference by virtue of his relationship with his natural mother.1 The definition does not extend to an illegitimate child seeking preference by virtue of his relationship with his natural father. Moreover, under § 101(b)(2), a person qualifies as a "parent" for purposes of the Act solely on the basis of the person's relationship with a "child." As a result, the natural father of an illegitimate child who is either a United States citizen or permanent resident alien is not entitled to preferential treatment as a "parent."
3
The special preference immigration status provided for those who satisfy the statutory "parent-child" relationship depends on whether the immigrant's relative is a United States citizen or permanent resident alien. A United States citizen is allowed the entry of his "parent" or "child" without regard to either an applicable numerical quota or the labor certification requirement. 8 U.S.C. §§ 1151(a), (b), 1182(a)(14). On the other hand, a United States permanent resident alien is allowed the entry of the "parent" or "child" subject to numerical limitations but without regard to the labor certification requirement. 8 U.S.C. § 1182(a)(14); see 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.40 n. 18 (rev. ed. 1975).2
4
Appellants are three sets of unwed natural fathers and their illegitimate offspring who sought, either as an alien father or an alien child, a special immigration preference by virtue of a relationship to a citizen or resident alien child or parent. In each instance the applicant was informed that he was ineligible for an immigrant visa unless he qualified for admission under the general numerical limitations and, in the case of the alien parents, received the requisite labor certification.3
5
Appellants filed this action in July 1974 in the United States District Court for the Eastern District of New York challenging the constitutionality of §§ 101(b)(1) and 101(b)(2) of the Act under the First, Fifth, and Ninth Amendments. Appellants alleged that the statutory provisions (i) denied them equal protection by discriminating against natural fathers and their illegitimate children "on the basis of the father's marital status, the illegitimacy of the child and the sex of the parent without either compelling or rational justification"; (ii) denied them due process of law to the extent that there was established "an unwarranted conclusive presumption of the absence of strong psychological and economic ties between natural fathers and their children born out of wedlock and not legitimated"; and (iii) "seriously burden(ed) and infringe(d) upon the rights of natural fathers and their children, born out of wedlock and not legitimated, to mutual association, to privacy, to establish a home, to raise natural children and to be raised by the natural father." App. 11-12. Appellants sought to enjoin permanently enforcement of the challenged statutory provisions to the extent that the statute precluded them from qualifying for the special preference accorded other "parents" and "children."
6
A three-judge District Court was convened to consider the constitutional issues. After noting that Congress' power to fashion rules for the admission of aliens was "exceptionally broad," the District Court held, with one judge dissenting, that the statutory provisions at issue were neither "wholly devoid of any conceivable rational purpose" nor "fundamentally aimed at achieving a goal unrelated to the regulation of immigration". Fiallo v. Levi, 406 F.Supp. 162, 165, 166 (D.C.N.Y. 1975). The court therefore granted judgment for the Government and dismissed the action.
7
We noted probable jurisdiction sub nom. Fiallo v. Levi, 426 U.S. 919, 96 S.Ct. 2622, 49 L.Ed.2d 371 (1976), and for the reasons set forth below we affirm.
II
8
At the outset, it is important to underscore the limited scope of judicial inquiry into immigration legislation. This Court has repeatedly emphasized that "over no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens. Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909); accord, Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972). Our cases "have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Shaughnessy v. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953); see, e. g., Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952); Lem Moon Sing v. United States, 158 U.S. 538, 15 S.Ct. 967, 39 L.Ed. 1082 (1895); Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893); The Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889). Our recent decisions have not departed from this long-established rule. Just last Term, for example, the Court had occasion to note that "the power over aliens is of a political character and therefore subject only to narrow judicial review." Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n. 21, 96 S.Ct. 1895, 1904-1905, 48 L.Ed.2d 495 (1976), citing Fong Yue Ting v. United States, supra, at 713, 13 S.Ct., at 1022; accord, Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976). And we observed recently that in the exercise of its broad power over immigration and naturalization, "Congress regularly makes rules that would be unacceptable if applied to citizens." Id., at 80, 96 S.Ct., at 1891.4
9
Appellants apparently do not challenge the need for special judicial deference to congressional policy choices in the immigration context,5 but instead suggest that a "unique coalescing of factors" makes the instant case sufficiently unlike prior immigration cases to warrant more searching judicial scrutiny. Brief for Appellants 52-55. Appellants first observe that since the statutory provisions were designed to reunite families wherever possible, the purpose of the statute was to afford rights not to aliens but to United States citizens and legal permanent residents. Appellants then rely on our border-search decisions in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), for the proposition that the courts must scrutinize congressional legislation in the immigration area to protect against violations of the rights of citizens. At issue in the border-search cases, however, was the nature of the protections mandated by the Fourth Amendment with respect to Government procedures designed to stem the illegal entry of aliens. Nothing in the opinions in those cases suggests that Congress has anything but exceptionally broad power to determine which classes of aliens may lawfully enter the country. See 413 U.S., at 272, 93 S.Ct., at 2539; 422 U.S., at 883-884, 95 S.Ct., at 2581-2582.
10
Appellants suggest a second distinguishing factor. They argue that none of the prior immigration cases of this Court involved "double-barreled" discrimination based on sex and illegitimacy, infringed upon the due process rights of citizens and legal permanent residents, or implicated "the fundamental constitutional interests of United States citizens and permanent residents in a familial relationship." Brief for Appellants 53-54; see id., at 16-18. But this Court has resolved similar challenges to immigration legislation based on other constitutional rights of citizens, and has rejected the suggestion that more searching judicial scrutiny is required. In Kleindienst v. Mandel, supra, for example, United States citizens challenged the power of the Attorney General to deny a visa to an alien who, as a proponent of "the economic, international, and governmental doctrines of World communism", was ineligible to receive a visa under 8 U.S.C. § 1182(a)(28)(D) absent a waiver by the Attorney General. The citizen-appellees in that case conceded that Congress could prohibit entry of all aliens falling into the class defined by § 1182(a)(28)(D). They contended, however, that the Attorney General's statutory discretion to approve a waiver was limited by the Constitution and that their First Amendment rights were abridged by the denial of Mandel's request for a visa. The Court held that "when the Executive exercises this (delegated) power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant." 408 U.S., at 770, 92 S.Ct., at 2585. We can see no reason to review the broad congressional policy choice at issue here under a more exacting standard than was applied in Kleindienst v. Mandel, a First Amendment case.6 Finally, appellants characterize our prior immigration cases as involving foreign policy matters and congressional choices to exclude or expel groups of aliens that were "specifically and clearly perceived to pose a grave threat to the national security," citing Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952), "or to the general welfare of this country," citing Boutilier v. INS, 387 U.S. 118, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967). Brief for Appellants 54. We find no indication in our prior cases that the scope of judicial review is a function of the nature of the policy choice at issue. To the contrary, "(s)ince decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary," and "(t)he reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization." Mathews v. Diaz, 426 U.S., at 81-82, 96 S.Ct., at 1892. See Harisiades v. Shaughnessy, supra, at 588-589, 72 S.Ct., at 518-519. As Mr. Justice Frankfurter observed in his concurrence in Harisiades v. Shaughnessy :
11
"The conditions of entry for every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress and wholly outside the power of this Court to control." 342 U.S., at 596-597, 72 S.Ct., at 522.
III
12
As originally enacted in 1952, § 101(b)(1) of the Act defined a "child" as an unmarried legitimate or legitimated child or stepchild under 21 years of age. The Board of Immigration Appeals and the Attorney General subsequently concluded that the failure of this definition to refer to illegitimate children rendered ineligible for preferential nonquota status both the illegitimate alien child of a citizen mother, Matter of A, 5 I. & N.Dec. 272, 283-284 (A.G.1953), and the alien mother of a citizen born out of wedlock, Matter of F, 7 I. & N.Dec. 448 (B.I.A.1957). The Attorney General recommended that the matter be brought to the attention of Congress, Matter of A, supra, at 284, and the Act was amended in 1957 to include what is now 8 U.S.C. § 1101(b)(1)(D). See n. 1, supra. Congress was specifically concerned with the relationship between a child born out of wedlock and his or her natural mother, and the legislative history of the 1957 amendment reflects an intentional choice not to provide preferential immigration status by virtue of the relationship between an illegitimate child and his or her natural father.7
13
This distinction is just one of many drawn by Congress pursuant to its determination to provide some but not all families with relief from various immigration restrictions that would otherwise hinder reunification of the family in this country. In addition to the distinction at issue here, Congress has decided that children, whether legitimate or not, cannot qualify for preferential status if they are married or are over 21 years of age. 8 U.S.C. § 1101(b)(1). Legitimated children are ineligible for preferential status unless their legitimation occurred prior to their 18th birthday and at a time when they were in the legal custody of the legitimating parent or parents. § 1101(b)(1)(C). Adopted children are not entitled to preferential status unless they were adopted before the age of 14 and have thereafter lived in the custody of their adopting or adopted parents for at least two years, § 1101(b)(1)(E). And stepchildren cannot qualify unless they were under 18 at the time of the marriage creating the stepchild relationship. § 1101(b)(1)(B).
14
With respect to each of these legislative policy distinctions, it could be argued that the line should have been drawn at a different point and that the statutory definitions deny preferential status to parents and children who share strong family ties. Cf. Mathews v. Diaz, supra, at 83-84, 96 S.Ct., at 1893. But it is clear from our cases, see Part II, supra, that these are policy questions entrusted exclusively to the political branches of our Government, and we have no judicial authority to substitute our political judgment for that of the Congress.
15
Appellants suggest that the distinction drawn in § 101(b)(1)(D) is unconstitutional under any standard of review since it infringes upon the constitutional rights of citizens and legal permanent residents without furthering legitimate governmental interests. Appellants note in this regard that the statute makes it more difficult for illegitimate children and their natural fathers to be reunited in this country than for legitimate or legitimated children and their parents, or for illegitimate children and their natural mothers. And appellants also note that the statute fails to establish a procedure under which illegitimate children and their natural fathers could prove the existence and strength of their family relationship. Those are admittedly the consequences of the congressional decision not to accord preferential status to this particular class of aliens, but the decision nonetheless remains one "solely for the responsibility of the Congress and wholly outside the power of this Court to control." Harisiades v. Shaughnessy, 342 U.S., at 597, 72 S.Ct., at 522 (Frankfurter, J., concurring). Congress obviously has determined that preferential status is not warranted for illegitimate children and their natural fathers, perhaps because of a perceived absence in most cases of close family ties as well as a concern with the serious problems of proof that usually lurk in paternity determinations.8 See Trimble v. Gordon, 430 U.S. 762, 771, 97 S.Ct. 1459, 1465-1466, 52 L.Ed.2d 31. In any event, it is not the judicial role in cases of this sort to probe and test the justifications for the legislative decision.9 Kleindienst v. Mandel, 408 U.S., at 770, 92 S.Ct., at 2585.
IV
16
We hold that §§ 101(b)(1)(D) and 101(b)(2) of the Immigration and Nationality Act of 1952 are not unconstitutional by virtue of the exclusion of the relationship between an illegitimate child and his natural father from the preferences accorded by the Act to the "child" or "parent" of a United States citizen or lawful permanent resident.
17
Affirmed.
18
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
19
Until today I thought it clear that when Congress grants benefits to some citizens, but not to others, it is our duty to insure that the decision comports with Fifth Amendment principles of due process and equal protection. Today, however, the Court appears to hold that discrimination among citizens, however invidious and irrational, must be tolerated if it occurs in the context of the immigration laws. Since I cannot agree that Congress has license to deny fundamental rights to citizens according to the most disfavored criteria simply because the Immigration and Nationality Act is involved, I dissent.
20
* The Immigration and Nationality Act of 1952 (INA), 8 U.S.C. § 1101 et seq., establishes the terms and conditions for entry into the United States. Among its various conditions, the Act requires that an alien seeking to enter the United States as a legal permanent resident must come within a restrictive numerical quota and must satisfy certain labor certification requirements. INA §§ 201, 202, 212(a)(14), 8 U.S.C. §§ 1151, 1152, 1182(a)(14) (1976 ed.), as amended by the Immigration and Nationality Act Amendments of 1976, 90 Stat. 2703 (hereinafter 1976 Amendments). In recognition of the fact that such requirements frequently separate families, Congress has provided that American citizens may petition to have the requirements waived for their immediate families spouse, parents, children. INA §§ 201(a), (b), 212(a)(14), 8 U.S.C. §§ 1151(a), (b), 1182(a)(14).1
21
The privilege is accorded only to those parents and children who satisfy the statute's definitions. Under INA § 101(b)(1), a "child" is defined as an unmarried person under 21 years of age who is a legitimate or legitimated child, a stepchild, an adopted child, or an illegitimate child by whom or on whose behalf a privilege is sought by virtue of the relationship of the child to its biological mother. 8 U.S.C. § 1101(b)(1).2 A "parent" is defined under INA § 101(b)(2) solely on the basis of the individual's relationship with a "child" as defined by § 101(b)(1). 8 U.S.C. § 1101(b)(2).3 The definitions cover virtually all parent-child relationships except that of biological father-illegitimate child. Thus while all American citizens are entitled to bring in their alien children without regard to either the numerical quota or the labor certification requirement, fathers are denied this privilege with respect to their illegitimate children. Similarly, all citizens are allowed to have their parents enter without regard to the labor certification requirement, and, if the citizen is over 21, also without regard to the quota. Illegitimate children, however, are denied such preferences for their fathers.
22
The unfortunate consequences of these omissions are graphically illustrated by the case of appellant Cleophus Warner.4 Mr. Warner is a naturalized citizen of the United States who, pursuant to 8 U.S.C. § 1154,5 petitioned the Attorney General for an immigrant visa for his illegitimate son Serge, a citizen of the French West Indies. Despite the fact that Mr. Warner acknowledged his paternity and registered as Serge's father shortly after his birth, has his name on Serge's birth certificate, and has supported and maintained Serge since birth, the special dispensation from the quota and labor certification requirements was denied because Serge was not a "child" under the statute. It matters not that, as the Government concedes, Tr. of Oral Arg. 25-26, Serge's mother has abandoned Serge to his father and has, by marrying another man, apparently rendered impossible, under French West Indies law, Mr. Warner's ever legitimating Serge. Mr. Warner is simply not Serge's "parent."
II
23
The Government contends that this legislation is not subject to judicial review. Pointing to the fact that aliens have no constitutional right to immigrate to the United States and to a long line of cases that recognize that policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government, the Government concludes that "(t)he congressional decision whether or to whom to extend such a valuable privilege . . . is not a subject of judicial concern." Brief for Appellees 22.
24
The Court rightly rejects this expansive claim and recognizes that "(o)ur cases reflect acceptance of a limited judicial responsibility . . . even with respect to the power of Congress to regulate the admission and exclusion of aliens." Ante, at 793 n. 5. It points out, however, that the scrutiny is circumscribed. Congress has "broad power to determine which classes of aliens may lawfully enter the country" and its political judgments warrant deference. Ante, at 794-796.
25
I wholeheartedly agree with the Court's rejection of the Government's claim of unreviewable discretion. Indeed, as I observed in Kleindienst v. Mandel, 408 U.S. 753, 781, 92 S.Ct. 2576, 2591, 33 L.Ed.2d 683 (1972) (dissenting opinion), the old immigration cases that reflect an absolute "hands-off" approach by this Court "are not the strongest precedents in the United States Reports." I am pleased to see the Court reveal once again a "reluctance to rely on them completely." Ibid. I also have no quarrel with the principle that the essentially political judgments by Congress as to which foreigners may enter and which may not deserve deference from the judiciary.
26
My disagreement with the Court arises from its application of the principle in this case. The review the majority purports to require turns out to be completely "toothless." Cf. Trimble v. Gordon, 430 U.S., at 767, 97 S.Ct., at 1463. After observing the effects of the denial of preferential status to appellants, the majority concludes: "(B)ut the decision nonetheless remains one 'solely for the responsibility of the Congress and wholly outside the power of this Court to control.' " Ante, at 799. Such "review" reflects more than due deference; it is abdication.6 Assuming, arguendo, that such deference might be appropriate in some situations a supposition I find difficult to accept it is particularly inappropriate in this case.
27
This case, unlike most immigration cases that come before the Court, directly involves the rights of citizens, not aliens. "(C)oncerned with the problem of keeping families of United States citizens and immigrants united", H.R.Rep. No. 1199, 85th Cong., 1st Sess., 7 (1957), U.S. Code Cong. & Admin.News 1957, p. 2020, Congress extended to American citizens the right to choose to be reunited in the United States with their immediate families. The focus was on citizens and their need for relief from the hardships occasioned by the immigration laws. The right to seek such relief was given only to the citizen, not the alien. 8 U.S.C. § 1154.7 If the citizen does not petition the Attorney General for the special "immediate relative" status for his parent or child, the alien, despite his relationship, can receive no preference. 8 U.S.C. § 1153(d). It is irrelevant that aliens have no constitutional right to immigrate and that Americans have no constitutional right to compel the admission of their families. The essential fact here is that Congress did choose to extend such privileges to American citizens but then denied them to a small class of citizens. When Congress draws such lines among citizens, the Constitution requires that the decision comport with Fifth Amendment principles of equal protection and due process. The simple fact that the discrimination is set in immigration legislation cannot insulate from scrutiny the invidious abridgment of citizens' fundamental interests.
28
The majority responds that in Kleindienst v. Mandel, supra, the Court recognized that First Amendment rights of citizens were "implicated," but refused to engage in the close scrutiny usually required in First Amendment cases. Therefore, it argues, no more exacting standard is required here. In that case, Mandel, a Belgian "revolutionary Marxist," could visit this country only if the Attorney General waived the statutory prohibition of visas to "(a)liens who advocate the economic, international, and governmental doctrines of World communism." 8 U.S.C. § 1182(a)(28)(D). The Attorney General denied the waiver, and suit was brought by Mandel and several citizens who claimed that their First Amendment right to hear Mandel in person was abridged by the denial. Rejecting the Government's contention that it had "unfettered discretion, and any reason or no reason (for denying a waiver) may be given", the Court upheld the denial only after finding that it was based on a "legitimate and bona fide" reason Mandel's abuses of visa privileges on a prior visit. 408 U.S., at 769, 92 S.Ct., at 2585. At the same time, however, the Court chose not to scrutinize more closely and accepted the reason without weighing against it the claimed First Amendment interest. It feared becoming embroiled in the "dangerous and undesirable" task of considering, every time an alien was denied a waiver, such factors as the projected number of people wishing to speak with the alien and the probity of his ideas. Id., at 769, 92 S.Ct., at 2585.
29
Whatever the merits of the Court's fears in Mandel, cf. id., at 774, 92 S.Ct., at 2587 (Marshall, J., dissenting), the present case is clearly distinguishable in two essential respects. First, in Mandel, Congress had not focused on citizens and their need for relief. Rather, the governmental action was concerned with keeping out "undesirables." The impact on the citizens' right to hear was an incidental and unavoidable consequence of that political judgment. The present case presents a qualitatively different situation. Here, the purpose of the legislation is to accord rights, not to aliens, but to United States citizens. In so doing, Congress deliberately chose, for reasons unrelated to foreign policy concerns or threats to national security, to deny those rights to a class of citizens traditionally subject to discrimination.8 Second, in Mandel, unlike the present case, appellees conceded the ability of Congress to enact legislation broadly prohibiting the entry of all aliens with Mandel's beliefs.9 Their concern was directed instead to the exercise of the discretion granted the Attorney General to waive the prohibition. In the present case, by contrast, we are asked to engage in the traditional task of reviewing the validity of a general Act of Congress challenged as unconstitutional on its face. Totally absent therefore is the specter of involving the courts in second-guessing countless individual determinations by the Attorney General as to the merits of a particular alien's entrance.
III
A.
30
Once it is established that this discrimination among citizens cannot escape traditional constitutional scrutiny simply because it occurs in the context of immigration legislation, the result is virtually foreordained. One can hardly imagine a more vulnerable statute.
31
The class of citizens denied the special privilege of reunification in this country is defined on the basis of two traditionally disfavored classifications gender and legitimacy. Fathers cannot obtain preferred status for their illegitimate children; mothers can. Conversely, every child except the illegitimate legitimate, legitimated, step-, adopted can obtain preferred status for his or her alien father. The Court has little tolerance for either form of discrimination. We require that gender-based classifications "serve important governmental objectives and . . . be substantially related to achievement of those objectives." Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. 1192, 1194, 51 L.Ed.2d 360; Califano v. Goldfarb, 430 U.S. 199, 210-211, 97 S.Ct. 1021, 1028-1029, 51 L.Ed.2d 270; Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 51 L.Ed.2d 397 (1976); see also Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). We are similarly hostile to legislation excluding illegitimates from governmental beneficence, finding it "illogical and unjust" to deprive a child "simply because its natural father has not married its mother." Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973). See also Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31; Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974); Beaty v. Weinberger, 478 F.2d 300 (CA5 1973), summarily aff'd, 418 U.S. 901, 94 S.Ct. 3190, 41 L.Ed.2d 1150 (1974); New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619, 93 S.Ct. 1700, 36 L.Ed.2d 543 (1973); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Davis v. Richardson, 342 F.Supp. 588 (D.C.Conn., 1972), summarily aff'd, 409 U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659 (1972); Griffin v. Richardson, 346 F.Supp. 1226 (D.C.Md.), summarily aff'd, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972); Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); cf. Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). But see Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971).
32
But it is not simply the invidious classifications that make the statute so vulnerable to constitutional attack. In addition the statute interferes with the fundamental "freedom of personal choice in matters of marriage and family life". Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974); see also Roe v. Wade, 410 U.S. 133, 152-153, 93 S.Ct. 705, 726-727, 35 L.Ed.2d 147 (1973); Wisconsin v. Yoder, 406 U.S. 205, 231-233, 92 S.Ct. 1526, 1541-1542, 32 L.Ed.2d 15 (1972); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-1213, 31 L.Ed.2d 551 (1972); Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1968); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); id., at 495-496, 85 S.Ct., at 1687-1688 (Goldberg, J., concurring); id., at 502-503, 85 S.Ct., at 1691-1692 (White, J., concurring); Poe v. Ullman, 367 U.S. 497, 542-544, 549-553, 81 S.Ct. 1752, 1776-1777, 1780-1782, 6 L.Ed.2d 989 (Harlan, J., dissenting). The right to live together as a family belongs to both the child who seeks the entrance of his or her father and the father who seeks to bring his child in.
33
"It is no less important for a child to be cared for by its . . . parent when that parent is male rather than female. And a father, no less than a mother, has a constitutionally protected right to the 'companionship, care, custody, and management' of 'the children he has sired and raised . . .' Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)." Weinberger v. Wiesenfeld, supra, at 652, 95 S.Ct., at 1235.
34
In view of the legislation's denial of this right to these classes, it is clear that, whatever the verbal formula, the Government bears a substantial burden to justify the statute.
B
35
There is no dispute that the purpose of these special preference provisions is to reunify families separated by the immigration laws. As Congress itself declared "(t)he legislative history of the Immigration and Nationality Act clearly indicates that the Congress intended (in these provisions) to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immigrants united." H.R.Rep. No. 1199, 85th Cong., 1st Sess., 7 (1957), U.S.Code Cong. & Admin.News 1957, p. 2020. It is also clear that when Congress extended the privilege to cover the illegitimate-child-mother relationship in 1957, it did so to alleviate hardships it found in several cases denying preferential status to illegitimate children and their mothers. Id., at 7-8. Accord, S.Rep. No. 1057, 85th Cong., 1st Sess., 4 (1957).
36
The legislative history, however, gives no indication of why these privileges were absolutely denied illegitimate children and their fathers.10 The Government suggests that Congress may have believed that "such persons are unlikely to have maintained a close personal relationship with their offspring." Brief for Appellees 17. If so, Congress' chosen shorthand for "closeness" is obviously overinclusive. No one can dispute that there are legitimate, legitimated, step-, and adoptive parent-child relationships and mother-illegitimate child relationships that are not close and yet are accorded the preferential status. Indeed, the most dramatic illustration of the overinclusiveness is the fact that while Mr. Warner can never be deemed a "parent" of Serge, nevertheless, if he should marry, his wife could qualify as a stepparent, entitled to obtain for Serge the preferential status that Mr. Warner cannot obtain. Andrade v. Esperdy, 270 F.Supp. 516 (S.D.N.Y. 1967); Nation v. Esperdy, 239 F.Supp. 531 (S.D.N.Y. 1965).11 Similarly, a man who, in an adulterous affair, fathers a child outside his marriage cannot be the "parent" of that child, but his wife may petition as stepparent. Matter of Stultz, 15 I. & N. Dec. —- (1975).
37
That the statute is underinclusive is also undisputed. Brief for Appellees 17; Tr. of Oral Arg. 21. Indeed, the Government could not dispute it in view of the close relationships exhibited in appellants' cases, recognized in our previous cases, see, e. g., Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31; Weber v. Aetna Casualty & Surety Co., supra, at 169, 92 S.Ct., at 1403; Stanley v. Illinois, supra, and established in numerous studies.12
38
The Government suggests that Congress may have decided to accept the inaccurate classifications of this statute because they considered a case-by-case assessment of closeness and paternity not worth the administrative costs. This attempted justification is plainly inadequate. In Stanley v. Illinois, supra, we expressed our low regard for the use of "administrative convenience" as the rationale for interfering with a father's right to care for his illegitimate child.
39
"Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand." 405 U.S., at 656-657, 92 S.Ct., at 1215.
40
See also Glona v. American Guarantee & Liability Ins. Co., supra.
41
This Court has been equally intolerant of the rationale when it is used to deny rights to the illegitimate child. While we are sensitive to " 'the lurking problems with respect to proof of paternity,' " Trimble v. Gordon, 430 U.S., at 771, 97 S.Ct., at 1466, quoting Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973), we are careful not to allow them to be " 'made into an impenetrable barrier that works to shield otherwise invidious discrimination.' " Trimble, 430 U.S., at 771, 97 S.Ct., at 1466. We require, at a minimum, that the statute (be) " 'carefully tuned to alternative considerations' ", 430 U.S., at 772, 97 S.Ct., at 1466, quoting Mathews v. Lucas, 427 U.S., at 513, 96 S.Ct., at 2766, and not exclude all illegitimates simply because some situations involve difficulties of proof. Ibid.
42
Given such hostility to the administrative-convenience argument when invidious classifications and fundamental rights are involved, it is apparent that the rationale is inadequate in the present case. As I observed earlier, since Congress gave no indication that administrative costs were its concern we should scrutinize the hypothesis closely. The likelihood of such a rationale is diminished considerably by the comprehensive and elaborate administrative procedures already established and employed by the INS in passing on claims of the existence of a parent-child relationship. All petitions are handled on a case-by-case basis with the petitioner bearing the burden of proof. Moreover, the INS is no stranger to cases requiring proof of paternity. When, for example, a citizen stepmother petitions for the entrance of her husband's illegitimate child, she must necessarily prove that her husband is the child's father.13 Indeed, it is ironic that if Mr. Warner marries and his wife petitions for Serge, her proof will, in fact, be one step more complex than his would be not only must she prove his paternity, but she must also prove their marriage. Nevertheless, she would be entitled to an opportunity to prove those facts; he is not.
43
Nor is a fear of involvement with foreign laws and records a persuasive explanation of the omission. In administering the Act with respect to legitimated children, for example, the critical issue is whether the steps undertaken are adequate under local law to render the child legitimate, and the INS has become expert in such matters.14 I note, in this connection, that where a child was born in a country in which all children are legitimate,15 proof of paternity is the critical issue and the proof problems are identical to those involved with an illegitimate child.
44
Given the existence of these procedures and expertise, it is difficult indeed to give much weight to the hypothesized administrative-convenience rationale. Moreover, as noted previously, this Court will not allow concerns with proof to justify "an impenetrable barrier that works to shield otherwise invidious discrimination." Gomez, supra, at 538, 93 S.Ct., at 875. As the facts of this case conclusively demonstrate, Congress has "failed to consider the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity." Trimble, 430 U.S., at 770-771, 97 S.Ct., at 1465. Mr. Warner is a classic example of someone who can readily prove both paternity and closeness. Appellees concede this Tr. of Oral Arg. 21-22. The fact that he is denied the opportunity demonstrates beyond peradventure that Congress has failed to " 'carefully tun(e) (the statute) to alternative considerations.' " Trimble, 430 U.S., at 772, 97 S.Ct., at 1466, quoting Mathews v. Lucas, 427 U.S., at 513, 96 S.Ct., at 2766. That failure is fatal to the statute. Trimble, 430 U.S., at 772-773, 97 S.Ct., at 1466.16
IV
45
When Congress grants a fundamental right to all but an invidiously selected class of citizens, and it is abundantly clear that such discrimination would be intolerable in any context but immigration, it is our duty to strike the legislation down. Because the Court condones the invidious discrimination in this case simply because it is embedded in the immigration laws, I must dissent.
46
Mr. Justice WHITE also dissents, substantially for the reasons stated by Mr. Justice MARSHALL in his dissenting opinion.
1
Section 101(b)(1), as set forth in 8 U.S.C. § 1101(b), provides:
"(1) The term 'child' means an unmarried person under twenty-one years of age who is
"(A) a legitimate child; or
"(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred; or
"(C) a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.
"(D) an illegitimate child, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother;
"(E) a child adopted while under the age of fourteen years if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter.
"(F) a child, under the age of fourteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 1151(b) of this title (§ 201(b)), who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care which will be provided the child if admitted to the United States and who has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States
citizen and his spouse who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse who have complied with the preadoption requirements, if any, of the child's proposed residence: Provided, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter."
2
Effective January 1, 1977, the parent-child relationship no longer triggers an exemption from the labor certification requirement. Immigration and Nationality Act Amendments of 1976, § 5, 90 Stat. 2705. The 1976 amendments contain a savings clause, § 9, however, which provides that the amendments
"shall not operate to affect the entitlement to immigrant status or the order of consideration for issuance of an immigrant visa of an alien entitled to a preference status, under section 203(a) of the Immigration and Nationality Act, as in effect on the day before the effective date of this Act, on the basis of a petition filed with the Attorney General prior to such effective date."
3
Appellant Ramon Martin Fiallo, a United States citizen by birth, currently resides in the Dominican Republic with his natural father, appellant Ramon Fiallo-Sone, a citizen of that country. The father initiated procedures to obtain an immigrant visa as the "parent" of his illegitimate son, but the United States Consul for the Dominican Republic informed appellant Fiallo-Sone that he could not qualify for the preferential status accorded to "parents" unless he legitimated Ramon Fiallo.
Appellant Cleophus Warner, a naturalized United States citizen, is the unwed father of appellant Serge Warner, who was born in 1960 in the French West Indies. In 1972 Cleophus Warner petitioned the Immigration and Naturalization Service to classify Serge as Warner's "child" for purposes of obtaining an immigrant visa, but the petition was denied on the ground that there was no evidence that Serge was Warner's legitimate or legitimated offspring.
Appellants Trevor Wilson and Earl Wilson, permanent resident aliens, are the illegitimate children of appellant Arthur Wilson, a citizen of Jamaica. Following the death of their mother in 1974, Trevor and Earl sought to obtain an immigrant visa for their father. We are informed by the appellees that although the application has not yet been rejected, denial is certain since the children are neither legitimate nor legitimated offspring of Arthur Wilson.
4
Writing for the Court in Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954), Mr. Justice Frankfurter noted that "much could be said for the view" that due process places some limitations on congressional power in the immigration area, "were we writing on a clean slate".
"But the slate is not clean. As to the extent of the power of Congress under review, there is not merely 'a page of history,' . . . but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. . . . But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government. . . .
"We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens . . . ." Id., at 530-532, 74 S.Ct., at 742-743.
We are no more inclined to reconsider this line of cases today than we were five years ago when we decided Kleindienst v. Mandel, 408 U.S. 753, 767, 92 S.Ct. 2576, 2584, 33 L.Ed.2d 683 (1972).
5
The appellees argue that the challenged sections of the Act, embodying as they do "a substantive policy regulating the admission of aliens into the United States, (are) not an appropriate subject for judicial review." Brief for Appellees 15, 19-24. Our cases reflect acceptance of a limited judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens, and there is no occasion to consider in this case whether there may be actions of the Congress with respect to aliens that are so essentially political in character as to be nonjusticiable.
6
The thoughtful dissenting opinion of our Brother Marshall would be persuasive if its basic premise were accepted. The dissent is grounded on the assumption that the relevant portions of the Act grant a "fundamental right" to American citizens, a right "given only to the citizen" and not to the putative immigrant. Post, at 806, 808, 816. The assumption is facially plausible in that the families of putative immigrants certainly have an interest in their admission. But the fallacy of the assumption is rooted deeply in fundamental principles of sovereignty.
We are dealing here with an exercise of the Nation's sovereign power to admit or exclude foreigners in accordance with perceived national interests. Although few, if any, countries have been as generous as the United States in extending the privilege to immigrate, or in providing sanctuary to the oppressed, limits and classifications as to who shall be admitted are traditional and necessary elements of legislation in this area. It is true that the legislative history of the provision at issue here establishes that congressional concern was directed at "the problem of keeping families of United States citizens and immigrants united." H.R.Rep. No. 1199, 85th Cong., 1st Sess., 7 (1957), U.S.Code Cong. & Admin.News, 1957, pp. 2016, 2020. See also H.R.Rep. No. 1365, 82d Cong., 2d Sess., 29 (1952), U.S.Code Cong. & Admin.News 1952, pp. 1653, 1680 (statute implements "the underlying intention of our immigration laws regarding the preservation of the family unit"). To accommodate this goal, Congress has accorded a special "preference status" to certain aliens who share relationships with citizens or permanent resident aliens. But there are widely varying relationships and degrees of kinship, and it is appropriate for Congress to consider not only the nature of these relationships but also problems of identification, administration, and the potential for fraud. In the inevitable process of "line drawing," Congress has determined that certain classes of aliens are more likely than others to satisfy national objectives without undue cost, and it has granted preferential status only to those classes.
As Mr. Justice Frankfurter wrote years ago, the formulation of these "(p) olicies pertaining to the entry of aliens . . . is entrusted exclusively to Congress". Galvan v. Press, 347 U.S., at 531, 74 S.Ct., at 743. This is not to say, as we make clear in n. 5, supra, that the Government's power in this area is never subject to judicial review. But our cases do make clear that despite the impact of these classifications on the interests of those already within our borders, congressional determinations such as this one are subject only to limited judicial review.
7
S. Rep. No. 1057, 85th Cong., 1st Sess., 4 (1957) (the amendment was designed "to clarify the law so that the illegitimate child would in relation to his mother enjoy the same status under the immigration laws as a legitimate child") (emphasis added); H.R.Rep. No. 1199, 85th Cong., 1st Sess., 7 (1957), U.S.Code Cong. & Admin.News 1957, p. 2020 (the amendment was designed "to alleviate hardship and provide for a fair and humanitarian adjudication of immigration cases involving children born out of wedlock and the mothers of such children ") (emphasis added); 103 Cong.Rec. 14659 (1957) (remarks of Sen. Kennedy) (the amendment "would clarify the law so that an illegitimate child would, in relation to his mother, enjoy the same status under immigration laws as a legitimate child") (emphasis added).
8
The inherent difficulty of determining the paternity of an illegitimate child is compounded when it depends upon events that may have occurred in foreign countries many years earlier. Congress may well have given substantial weight, in adopting the classification here challenged, to these problems of proof and the potential for fraudulent visa applications that would have resulted from a more generous drawing of the line. Moreover, our cases clearly indicate that legislative distinctions in the immigration area need not be as " 'carefully tuned to alternative considerations,' " Trimble v. Gordon, 430 U.S., at 772, 97 S.Ct., at 1466 (quoting Mathews v. Lucas, 427 U.S. 495, 513, 96 S.Ct. 2755, 2766, 49 L.Ed.2d 651 (1976)), as those in the domestic area.
9
Appellants insist that the statutory distinction is based on an overbroad and outdated stereotype concerning the relationship of unwed fathers and their illegitimate children, and that existing administrative procedures, which had been developed to deal with the problems of proving paternity, maternity, and legitimation with respect to statutorily recognized "parents" and "children," could easily handle the problems of proof involved in determining the paternity of an illegitimate child. We simply note that this argument should be addressed to the Congress rather than the courts. Indeed, in that regard it is worth noting that a bill introduced in the 94th Congress would have eliminated the challenged distinction. H.R. 10993, 94th Cong., 1st Sess. (1975).
1
Title 8 U.S.C. §§ 1151(a) and (b) provide:
"s 1151. Numerical limitations on total lawful admissions.
"(a) Quarterly and yearly limitations.
"Exclusive of special immigrants defined in section 1101(a)(27) of this title, and of the immediate relatives of United States citizens specified in subsection (b) of this section, the number of aliens who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence, or who may, pursuant to section 1153(a)(7) of this title enter conditionally, (i) shall not in any of the first three quarters of any fiscal year exceed a total of 45,000 and (ii) shall not in any fiscal year exceed a total of 170,000.
"(b) Immediate relatives defined.
"The 'immediate relatives' referred to in subsection (a) of this section shall mean the children, spouses, and parents of a citizen of the United States: Provided, That in the case of parents, such citizen must be at least twenty-one years of age. The immediate relatives specified in this subsection who are otherwise qualified for admission as immigrants shall be admitted as such, without regard to the numerical limitations in this chapter." (Emphasis added.)
The changes made by the 1976 Amendments were not material to this case.
Title 8 U.S.C. § 1182(a)(14) provides:
"s 1182. Excludable aliens
"(a) General classes.
"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. The exclusion of aliens under this paragraph shall apply to special immigrants defined in section 1101(a)(27)(A) of this title (other than the parents, spouses, or children of United States citizens or of aliens lawfully admitted to the United States for permanent residence ), to preference immigrant aliens described in sections 1153(a)(3) and 1153(a)(6) of this title, and to nonpreference immigrant aliens described in section 1153(a) (8) of this title." (Emphasis added.)
For the significance of the 1976 Amendments on this section, see n. 4, infra.
2
Title 8 U.S.C. § 1101(b)(1) provides:
"(1) The term 'child' means an unmarried person under twenty-one years of age who is
"(A) a legitimate child; or
"(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred; or
"(C) a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.
"(D) an illegitimate child, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother;
"(E) a child adopted while under the age of fourteen years if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter.
"(F) a child, under the age of fourteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 1151(b) of this title, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care which will be provided the child if admitted to the United States and who has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and his spouse who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse who have complied with the preadoption requirements, if any, of the child's proposed residence: Provided, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter."
3
Title 8 U.S.C. § 1101(b)(2) provides:
"The terms 'parent,' 'father,' or 'mother' mean a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in subdivision (1) of this subsection."
4
Instituting this suit with Warner were Ramon Fiallo, and Trevor and Earl Wilson. Both Fiallo, a five-year-old American citizen, and the Wilsons, teen-aged permanent resident aliens, sought the waiver of the labor certification requirements for their respective fathers. Although the 1976 Amendments removed the exemptions from the labor certification requirement for the parent-child relationships, nevertheless their cases are not moot. There is a saving clause providing: "The amendments made by this Act shall not operate to affect the entitlement to immigrant status or the order of consideration for issuance of an immigrant visa of an alien entitled to a preference status, under section 203(a) of the Immigration and Nationality Act, as in effect on the day before the effective date of this Act, on the basis of a petition filed with the Attorney General prior to such effective date." 1976 Amendments § 9.
Since these situations cannot recur, however, I will focus on Mr. Warner, whose plight, unfortunately, can be repeated.
5
The citizen seeking "immediate relative" status for his or her spouse, parent, or child must file a so-called Form I-130 petition with the Attorney General. See text accompanying n. 7, infra, for a description of the procedure.
6
The majority does not even engage in the modest degree of scrutiny required by Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). See discussion infra, at 807-808. That failure, I submit, is due to the fact that the statute could not even pass that standard of review. See Part III, infra.
7
Under 8 U.S.C. § 1154(a), "(a)ny citizen of the United States claiming that an alien is entitled to . . . an immediate relative status under section 1151(b) of this title . . . may file a petition with the Attorney General for such classification." (Emphasis added.) Title 8 U.S.C. § 1154(b) prescribes the procedure after a petition is filed:
"(b) Investigation; consultation; approval; authorization to grant preference status
"After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitions to accord a status under section 1153(a)(3) or 1153(a)(6) of this title, the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative specified in section 1151(b) of this title, or is eligible for a preference status under section 1153(a) of this title, approve the petition and forward one copy thereof to the Department of State. The Secretary of State shall then authorize the consular officer concerned to grant the preference status."
Title 8 U.S.C. § 1153(d) precludes a consular officer from granting preferential status as an "immediate relative" "until he has been authorized to do so as provided by section 1154".
8
Indeed, the majority concedes, ante, at 795 n. 6, that if it is true that Congress has granted a right to citizens and not to aliens, my position is "persuasive." It then attempts to show that the premise is inaccurate. The effort, however, is doomed. There is no way to avoid the facts that, as the majority agrees, Congress was concerned with the problem of separating United States citizens from their families and that, as the majority ignores, it specifically gave to citizens the right to seek special dispensation from the immigration restrictions for their immediate families. See discussion supra, at 806-807.
9
The Court noted: "(Appellees) concede that Congress could enact a blanket prohibition against entry of all aliens falling into the class defined by §§ 212(a)(28)(D) and (G)(v), and that First Amendment rights could not override that decision." 408 U.S., at 767, 92 S.Ct., at 2584. But see id., at 779 n. 4, 92 S.Ct., at 2590 (Marshall, J., dissenting).
10
This absence should alert us to the danger, ever present in legislation denying rights along gender and legitimacy lines, that it was very likely "habit, rather than analysis or actual reflection," Califano v. Goldfarb, 430 U.S., at 222, 97 S.Ct., at 1035 (Stevens, J., concurring), that led Congress to assume that only mothers are close to their illegitimate children.
11
The Immigration and Naturalization Service (INS) seeks to add a gloss, in such cases, requiring, in addition to the marriage between the petitioner and the father of the illegitimate, some indicia of a "close family unit." Matter of Harris, 15 I. & N. Dec. —- (1970). The phrase has not been defined but we know that it includes a situation where the father, stepmother, and child have lived together at some time, Matter of The, 11 I. & N. Dec. 449 (1965), and excludes the case where neither father nor stepmother ever lived with or cared for the child. Matter of Harris, supra; Matter of Amado and Monteiro, 13 I. & N. Dec. 179 (1969); Matter of Soares, 12 I. & N. Dec. 653 (1968); Matter of Morris, 11 I. & N. Dec. 537 (1966). The only court to review this interpretation has rejected the added gloss. The fact of the marriage is sufficient to categorize the wife as "stepmother." Andrade v. Esperdy, 270 F.Supp. 516 (S.D.N.Y. 1967).
12
Chaskel, Changing Patterns of Services for Unmarried Parents, 49 Social Casework 3 (1968); Chaskel, The Unmarried Mother: Is She Different? 46 Child Welfare 65, 72 (1967); Herzog, Some Notes About Unmarried Fathers, 45 Child Welfare 194 (April 1966); Knight, Conferences for Pregnant Unwed Teen-Agers, 65 American Journal of Nursing 123, 126 (1965); Sauber, The Role of the Unmarried Father, 4 Welfare in Review 15, 16 (Nov.1966); Wessel, A Physician Looks at Services for Unmarried Parents, 49 Social Casework 11 (1968).
13
The easiest proof is a birth certificate that names the father. Review of Immigration Problems: Hearings on H.R. 10993 before the Subcommittee on Immigration, Citizenship, and International Law of the House Committee on the Judiciary, 94th Cong., 1st and 2d Sess., 150-151, 154 (1975-1976). Alternatively, the INS obtains affidavits from the natural mother or other people familiar with the relationship, looks at school documents which may name the father, and considers facts of custody or support. Ibid. The INS also relies on local judicial determinations if they exist, but it does not require them because "alternative administrative recognition procedures . . . normally available to the natural father . . . are less cumbersome and time consuming and are regarded by consular officers as equally reliable with court determinations in eliminating fraudulent claims to the paternal relationship." Id., at 151.
14
The variations are many. In some countries legitimation may be accomplished only by marriage of the natural parents, Matter of Blancaflor, 14 I. & N. Dec. 427 (1973) (Philippines); Matter of F, 7 I. & N. Dec. 448 (1957) (Portugal); Matter of W, 9 I. & N. Dec. 223 (1961) (Surinam); Matter of J, 9 I. & N. Dec. 246 (1961) (British Guiana); Matter of C, 9 I. & N. Dec. 597 (1962) (Spain); by court decree, Matter of J and Y, 3 I. & N. Dec. 657 (1949); Matter of Duncan, 15 I. & N. Dec. (I. D. 2373, 1975) (Liberia); or by formal recognition, Matter of K, 8 I. & N. Dec. 73 (1958) (Poland); Matter of Jancar, 11 I. & N. Dec. 365 (1965) (Yugoslavia); Matter of G, 9 I. & N. Dec. 518 (1961) (Hungary); Matter of Peters, 11 I. & N. Dec. 691 (1966) (Virgin Islands); Matter of Sinclair, 13 I. & N. Dec. 613 (1970) (Panama); Matter of Kubicka, 14 I. & N. Dec. 303 (1972) (Poland); Matter of Coker, 14 I. & N. Dec. 521 (1974) (Nigeria); Matter of Kim, 14 I. & N. Dec. 561 (1974) (Korea). In some countries a child born out of wedlock is deemed the legitimate child of both parents, Matter of G, supra; cf. Matter of Lo, 14 I. & N. Dec. 379 (1973) (People's Republic of China).
15
See, e. g., Matter of G, supra; Matter of Lo, supra.
16
Since resident aliens are also not to be arbitrarily denied privileges on the basis of gender and legitimacy, Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976); Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), it is clear that appellants Earl and Trevor Wilson, if they meet the terms of the saving clause of the 1976 Amendments, should also be entitled to relief. See n. 5, supra.
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